Race can be “a” factor, not “the” factor.

NACE Journal, August 2016

Does Fisher v. University of Texas sound familiar? It should, because it is the second time in three years that the case had the potential to significantly alter the landscape of affirmative action.

In Fisher, a white applicant was denied admission to the University of Texas at Austin (UT). The claim was based upon UT’s use of racial preferences at portions of its undergraduate admissions process. The applicant alleged that by using race as a factor, UT had subjected her and other Caucasian applicants, to a disadvantage in violation of the law.

In June 2013, the Supreme Court issued its initial ruling in Fisher. In its June 2013 ruling, the Supreme Court did not rule on the UT program, but merely indicated that the lower court used the wrong standard in reviewing the program. The case then returned to the Supreme Court after the Fifth Circuit found it yet again constitutional.

On June 23, 2016, the Supreme Court upheld UT’s affirmative action program and the limited use of race as one factor in its admissions process. In so ruling, the Supreme Court found that UT’s goal to provide a diverse student body and its students with the benefits of such diversity, was a sufficient compelling interest to meet the required test. The Supreme Court also found, however, that UT must continue to satisfy the strict requirements of an affirmative action program on an ongoing basis, and periodically assess its policies and examine available data to ensure that race plays no greater role than necessary in the process.

Prior to the ruling, it was believed that the decision may impact affirmative action programs and policies not only for educational institutions, but also for employers that implement such practices. After the ruling, however, what impact did Fisher really have on the affirmative action and diversity landscape?

Diversity and Affirmative Action

First, it is necessary to provide some background on “diversity” and “affirmative action” as the terms are sometimes confused by employing organizations, educational institutions, and the individuals who work for or attend such entities.

Federal and state laws permit diversity efforts that are implemented to open up job opportunities to all classes of individuals and in an effort to avoid discrimination. The goal of “diversity” is not to remedy any past harms, but to ensure that future harms do not occur.

In this regard, several state and federal laws prohibit employers from discriminating against employees on the basis of a protected classification (i.e. race, national origin, gender, age, disability, genetic information, etc.). The list of protected classifications continues to grow as the years pass with the inclusion of sexual orientation, gender identity, and “off-duty” conduct now being protected in several states. As such, employers must be mindful to comply with any legal requirements set forth in such local, state, and federal laws. Such laws, however, do not generally impose upon employers or educational institutions the obligation to implement a program to create diversity. A program or policy to create diversity leads to affirmative action.

The term “affirmative action,” on the other hand, means that an entity has a program in place to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity.” An affirmative action program is not merely meant to prevent discrimination, but to affirmatively promote diversity to the potential exclusion of other races. Accordingly, the hurdles an entity is required to overcome to permit such affirmative action programs are, at times, significant.

Affirmative action has its roots in the U.S. Constitution. The 14th Amendment states “no state shall deny any person the equal protection of the law.” In essence, the Constitution prohibits a state school or government employer from discriminating in employment or programming based upon race, color, or national origin unless there is a compelling state interest to do so. Affirmative action programs that include preferential hiring or exclusive admissions programs are appropriate only if they are based upon a need to remedy the present effects of prior discrimination and if the affirmative action process is narrowly tailored to remedy the problem created by prior discrimination.

It should be noted that certain states have laws that prevent affirmative action programs. For example, Michigan has a state law that bars publicly funded colleges from granting "preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin." The foregoing law, while controversial, is also constitutional as it has been upheld by the Supreme Court. As such, entities (including employers and educational institutions) must be mindful of not only the federal laws pertaining to affirmative action, but to their specific state laws as well.

As previously noted, most employers and educational institutions are not required to have an affirmative action plan, but voluntarily choose to implement such a plan to promote diversity and increase recruiting efforts. There are, however, certain circumstances where an entity must implement an affirmative action plan.

By way of example, Executive Order 11246 requires employers that do business with the federal government to take affirmative action in the hiring and promotion of minorities and women. Additionally, as of July of 2014, the Executive Order was amended to require federal contractors to take “affirmative action” to ensure that applicants and employees are treated without regard to “sexual orientation” and “gender identity,” and to require federal contractors to add to their solicitations for employment that the contractor will consider qualified applicants for employment without regard to “sexual orientation” and “gender identity.”

As noted, some employers voluntarily implement affirmative action plans to create a more diverse work force. This may be done because the hiring practices of employers are monitored, regardless of whether there is a legal requirement to implement an affirmative action program. The Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP) monitor an employer’s practices with regard to hiring. The OFCCP requires employers bound by Executive Order 11246 to develop a written affirmative action plan that includes goals and timetables designed to address any imbalances. Employers also are required to review all of their hiring, recruiting, and promotion programs to determine if they have had a discriminatory impact.

Race as One Factor

The foregoing background brings us to the impact of the recent Fisher decision and the litany of cases that proceeded Fisher.

In June of 2003, the U.S. Supreme Court approved the use of affirmative action by state universities in their admissions process for the purpose of creating a diverse student body. At that time, the Supreme Court said that a state school does not violate the U.S. Constitution’s promise of equal protection when it considers race or ethnicity in its admissions process.

The Supreme Court also found that student diversity is a compelling state interest, justifying the use of race or ethnicity as a factor in the admissions process. However, the Supreme Court struck down any admissions program that gives the race or ethnicity of the candidate automatic bonus points. Under these decisions, preferential admissions programs are constitutional if:

• They are based upon creating diversity in the student body;
• Race is used as one of many factors in consideration;
• There is an individualized assessment of each candidate;
• There is no set-aside of openings or separate admissions process for individuals of a certain racial or ethnic background; and
• The use of race is limited in duration and will cease when a “critical mass” of minority students is reached.

In a 2007, the Supreme Court was asked to determine whether school districts could rely upon race to determine which schools children could attend. By way of example, the Seattle School District had never operated segregated schools or been subject to court-ordered desegregation. The school district, however, created a plan to diversify the student population in its high schools. Children were classified as white or non-white. The district then used the racial classification as a tie breaker to allocate slots in particular high schools. (Note: Another school district used a similar plan, and its plan was also brought before the court. The court’s decision resolved both cases; however, the decision carries only the name of the Seattle case.)

The Supreme Court held that both plans were unconstitutional since the school districts used race as a tie breaker in school assignments. The Supreme Court reiterated the principle that race cannot be used as the sole criteria for making assignment decisions. It must be one factor weighed with others in reaching the decision. Moreover, the plans only employed a limited notion of diversity, viewing race exclusively in terms of white or non-white. The Supreme Court also pointed out that use of these classifications had minimal effect on creating the diversity the schools sought to achieve since it only shifted a small number of students between schools. Finally, the Supreme Court held that the school districts failed to show that it considered other race-neutral methods to achieve their stated goals.

Finally, with the recent decision in Fisher, the Supreme Court, once again, upheld an affirmative action plan provided it meets the tests previously set forth. In Fisher, the plan was deemed acceptable because race was one of many factors, served to meet a compelling interest, and there was an individualized assessment of each candidate.

While employers and educational institutions were concerned with the potential impact on affirmative action plans based upon the Supreme Court’s decision in Fisher, the result is that there is minimal impact.

Employers or educational institutions that use affirmative action program may continue to do so, provided they comply with the requirements set forth by the Supreme Court (and are not prohibited by state law). If an entity wants to implement an affirmative action program, it must ensure it is doing so to remedy a past issue and to create a diverse work force or student body. The entity must also ensure that race is only one factor considered and not the determining factor. The entity should also ensure that the affirmative action program is the least intrusive method to remedy the past issues.

Based upon Fisher, any entity that uses an affirmative action program also must continue to monitor data and ensure that the plan is still necessary on a periodic basis While not specifically set forth, based upon other laws and regulations, such a review should occur on a yearly basis, if not more regularly. If, at any point, the data do not support the program, the entity should cease the program immediately to avoid potential liability.

The moral of the story is that if an entity implements an affirmative action program, either voluntarily or as required by law, it must ensure that it is going about it in the proper manner.

Minority-Only Programs

Beyond diversity and affirmative action, there is a third issue to be addressed, as it falls somewhere beyond mere affirmative action. The third issue is “minority-only” programs that employers or others implement in an effort to go beyond affirmative action to create positions that are only available to certain classes of individuals.

As noted above, the EEOC monitors the practices of employers to ensure that discrimination is not occurring in a workplace. The EEOC has provided guidance that specifically states that the anti-discrimination laws do not permit racially motivated decisions driven by business concerns, nor may race or color ever be a bona fide occupational qualification. While there is a lack of legal precedent that specifically addresses minority-only positions, there are cases through which courts have prohibited the placing of employees in positions based upon their race, e.g., placing a teacher in a position with similarly situated students, hiring certain races of firefighters to work in certain similarly situated areas.

If an entity wishes to implement a “minority-only” program, it must be mindful that it will be subject to heightened scrutiny and potential claims for discrimination. A private employer may only implement a “minority-only” program in certain circumstances, e.g., to eliminate a manifest imbalance in a traditionally segregated job category; however, the program must meet certain requirements. When determining whether such a program is valid, courts will consider whether the plan involves a quota or inflexible goal; whether the plan is flexible so that each candidate competes against other qualified applicants; whether the plan is temporary; and whether it unnecessarily impacts other third parties. In the event a “minority-only opportunity” meets such goals, it can be implemented by an organization. Given the fact that a “minority-only” program is the extreme version of an affirmative action program, any entity that desires to use such a program must make sure it is entirely necessary before implementation.

When an entity that receives federal funding implements a minority- exclusive program, it will generally be subject to strict scrutiny. As a result, the program must be narrowly tailored to remedy the present effects of past discrimination or implemented to promote diversity. In other words, the program must be necessary to further the entities’ interest in diversity and must not unduly restrict access to the benefits for applicants who do not meet the race-based eligibility criteria. If such a program is not narrowly tailored, it is likely to be deemed discriminatory under the law. Based upon the recent decision in Fisher, and the other recent decisions, it is likely that a “minority-only” program may have issues under strict scrutiny.

By way of example, in order to be deemed valid, race is generally only “a” factor, not “the” factor in an affirmative action program. A minority-only program, makes race “the” factor. As such, such programs may not pass the scrutiny, unless an entity is able to show that the program is essentially the only way to redress a past discriminatory issue. The entity must show that the environment was caused by its own past actions and was not a result of general societal discrimination.

Notwithstanding the foregoing, race-conscious recruiting efforts are always neutral with respect to selection if the efforts are inclusive. A comprehensive program that takes into account many factors, including race, is likely to pass constitutional muster.

Regardless of the considerations and conditions, employers and educational institutions should always be mindful of diversity efforts. All organizations should take steps to prevent discrimination and harassment, and to remedy such issues if they are found. If an organization wants to use an affirmative action program, however, it must make sure that the need for the program is in place prior to implementation and that it follows the criteria that have resulted from court decisions. The last thing an organization wants is to get sued for discrimination when attempting to create diversity.