Supreme Court affirmative action case a test for employers

People wait in line to enter the U.S. Supreme Court on October 10, 2012 in Washington, DC.

The Supreme Court today takes up a case of affirmative action in college admissions that could change the landscape for white and minority applicants. The case is also being watched closely by employers, and by advocates for increased minority and female representation in the workforce.

In 2003, the Supreme Court affirmed the use of race as one of the factors that can be considered in college admissions for the purpose of promoting campus diversity (Grutter v. Bollinger, involving the University of Michigan Law School). The justices could now roll back the permissible use of race in admission decisions in the current case involving a white woman, Abigail Fisher, who didn’t get into the University of Texas, Austin (Fisher v. University of Texas at Austin). The court’s current ideological makeup could tilt the balance this time around against affirmative action, with sweeping implications for 43 other states that follow admission policies similar to those in Texas.

Affirmative action -- using race, ethnicity, or gender as one consideration in hiring decisions -- is generally legal in employment. In fact, it’s required under civil rights legislation passed in the 1960s for federal agencies and companies that contract with the federal government. It is also sometimes mandated by a court for companies that have a proven history of racial or gender discrimination in employment.

Margaret Simms at the Urban Institute says some form of affirmative action is part of the routine human resources practice of many employers. “Most large companies do engage in some kinds of affirmative action,” says Simms. “They think of it as a business proposition, not a social proposition--to have members of that population in their workforce, either because it generates ideas, or because it makes them sensitive to their customer base.”

Elise Boddie, litigation director at the NAACP Legal Defense and Educational Fund, agrees that promoting diversity is a widely accepted and permitted goal in private- and public-sector hiring. “Under certain circumstances, employers can take race into account,” she says, “and in our view, they should take race into account in order to promote opportunity in the workplace.”

Employers often signal this in the way they publicize job openings, says Boddie. "They can advertise that they value diversity in employment and that they can consider race as one of many different factors to hire applicants," says Boddie. Simms says employers may also use language that goes beyond simply affirming that they are an equal opportunity employer, "to say that they encourage applications from people of all races, to give an indication that they really are serious about this."

Although the Supreme Court’s reconsideration of affirmative action in college admissions in the Fisher case does not directly threaten similar practices in employment, Boddie says there’s a potential consequence for employers, nonetheless.

“If the Supreme Court were to conclude that diversity in higher education is not a compelling interest,” says Boddie, “it would reduce the pool of African-American and Latino students available for hiring by businesses and the like.”

But Boddie says that as of now, she’s not aware of any major legal challenges to consideration of race in hiring decisions by private- or public-sector employers.

About the author

Mitchell Hartman is the senior reporter for Marketplace’s Entrepreneurship Desk and also covers employment.

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