Can Employers Use Affirmative Action to Boost Diversity?

Advice, Race Discrimination
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Affirmative action—few other topics will result in a more heated debate. However, with the recent Supreme Court decision Fisher v. University of Texas at Austin, affirmative action has been declared constitutional, at least to increase diversity in schools. But what about in the workplace? Can employers use affirmative action to increase the diversity of their workforce?

The simple answer is no. But why are schools allowed to use affirmative action while employers cannot? That is what we will discuss in this blog post.

Overview of Affirmative Action

Affirmative action refers to a policy that provides an advantage to a specific group of people that has been marginalized in the past. Affirmative action is controversial yet has survived many legal challenges because of the legal theory of a compelling government interest.

A compelling government interest is something that is so important to the government that it can enact a law that infringes on a fundamental constitutional right. When the government enacts such a law, courts will review its constitutionality using the strict scrutiny standard.

Strict scrutiny basically means that the court will only allow the law to exist if the government has a compelling reason for the law and the law is as limited and as specific as possible to achieve the government’s desired objectives.

An example where the government had a compelling government interest that met the strict scrutiny standard is Korematsu v. United States Get More Information. Here, the Supreme Court allowed the government to detain U.S. citizens of Japanese ancestry in concentration camps due to concerns of espionage during World War II.

One major area where affirmative action has been used is education, especially at the college level. Schools believe these diversity efforts improve the quality of education they can provide to their students. One such school is the University of Texas at Austin, which has been involved in several high-profile Supreme Court cases.

You can find further reading about affirmative action and its background on the National Conference of State Legislature’s website “Affirmative Action: Overview” and on the Leadership Conference’s webpage “Affirmative Action.”

Fisher v. University of Texas at Austin

texasIn Texas, students who graduate from high school in the top 10% of their class are guaranteed admission into the University of Texas at Austin. For students outside the top 10%, the University of Texas uses a holistic approach that reviews a variety of characteristics, including race.

Abigail Fisher, who is white, applied to the University of Texas but was not admitted. Fisher sued, claiming the university discriminated against her based on her race in violation of several laws, including the Fourteenth Amendment.

Fisher’s lawsuit first reached the U.S. Supreme Court in 2012. The Supreme Court sent the case back to the lower court on procedural grounds. In late 2015, Fisher’s case reached the Supreme Court a second time. The court upheld the university’s use of race in the admissions process.

The Supreme Court found that the University of Texas met the strict scrutiny standard. The school provided a well-reasoned, compelling interest in creating a diverse student body that was supported by statistical evidence. The Supreme Court also noted that the university tried using different methods to improve diversity, but those attempts had failed.

No Affirmative Action Allowed to Improve Employer Diversity

If the Fisher decision allows schools to use affirmative action to increase their student diversity, why can’t employers? The answer is Title VII of the Civil Rights Act of 1964 (Title VII).

Title VII prohibits employers from making employment decisions because of an individual’s skin color, national origin, sex, religion, or race. Therefore, it is illegal to give an applicant an advantage solely because of the applicant’s race. However, this is not always the case.

Under United Steelworkers of America v. Weber, an employer may voluntarily implement its own affirmative action plan. However, this is permissible only if the purpose is to remediate past failures to hire minority employees in areas that contain few minorities.

Under Executive Order 11246, certain government contractors must have affirmative action policies to identify instances where they are not hiring qualified minorities. Contractors can take steps to fix any such hiring discrepancies.

Despite these two major exceptions, employers may not use affirmative action to hire more minority employees solely to increase the diversity of their workforce. As a result, the Fisher case only applies to schools, not employers.

For those interested in gaining a more detailed understanding of using affirmative action in the workforce, please read “Affirmative Action in Employment” from the New York Law Journal and “Section 15: Race and Color Discrimination” in the Equal Employment Opportunity Commission’s Compliance Manual.

Carefully Consider Other Workplace Diversity Efforts

diversity at workBecause the law does not allow employers to use affirmative action to increase the number of minority employees they hire, some employers have required employees to take diversity training.

A recent study shows that these efforts may backfire. Sociologists from Harvard University and Tel Aviv University found that mandatory diversity training sessions actually caused the number of minorities at those companies to drop.

One explanation for this phenomenon is the mandatory nature of these training programs. Forcing employees to sit through training can create resentment, which can overshadow any benefits of diversity training.

For more information about the study’s findings, check out the article “To Improve Diversity, Don’t Make People Go to Diversity Training. Really” in The Washington Post.

Summing It Up

  • Affirmative action is a policy that provides an advantage to a group of people marginalized in the past.
  • Affirmative action will only survive a legal challenge if it advances a compelling government interest and if the affirmative action policy is as limited and as specific as possible to achieve its goals.
  • The recent Supreme Court case Fisher v. University of Texas at Austin has upheld schools’ use of affirmative action to increase the diversity of their student body.
  • Employers cannot rely on the Fisher decision to justify using affirmative action to improve the diversity of their employees because Title VII of the Civil Rights Act of 1964 prohibits employers from considering race when making employment decisions. There are two major exceptions: (1) government contractors and (2) voluntary programs designed to remediate historical inequality.