The U.S. Supreme Court is soon expected to decide two cases – Students for Fair Admissions vs. Harvard and Students for Fair Admissions vs. University of North Carolina – regarding whether colleges and universities may continue to use race as one factor among others in their admissions processes under Title VI of the Civil Rights Act of 1964. If, as many observers expect, the Court eliminates the consideration of race under Title VI, it may focus attention on employers’ diversity, equity and inclusion (DEI) programs under Title VII of the Civil Rights Act, which already prohibits the use of race in employment decisions (with very limited exceptions). This document gives a brief background on Title VI and Title VII of the Civil Rights Act, how they differ, and how the Harvard/UNC case may impact both statutes and employer DEI programs.
Title VI – College Admissions Title VI of the Civil Rights Act of 1964 prohibits organizations or programs receiving federal funding from discriminating against individuals on the basis of race, ethnicity, or national origin. Functionally, within the context of college admissions, this federal law prohibits colleges and universities receiving federal funding from discriminating against applicants on the basis of race, ethnicity, and national origin.
As this law relates to affirmative action – or the use of race, ethnicity, or national origin in admissions decisions in general – the Supreme Court has established, originally in Regents of the University of California v. Bakke in 1978, and most recently affirmed in Fisher v. University of Texas in 2016, that colleges and universities may use race as one factor among many factors or criteria in making admissions decisions. The Supreme Court has recognized a diverse college campus – i.e., diversity itself – as a sufficiently compelling interest such that colleges and universities may use race as a factor in admissions decisions in furtherance of that interest. Notably, in a similar case decided in 2003 – Grutter v. Bollinger – Justice Sandra Day O’Connor noted that she expected that “25 years from now, the use of racial preferences will no longer be necessary to further [that] interest.”
Schools may not use simple quotas, and race may only be used as one factor among many in admissions decisions. In practice, schools often use race as a “plus factor” among other “plus factors” (such as geographical location, extracurricular participation, test scores, etc.) that go in favor of an applicant, and compare applicants by the number of “plus factors” each has.
Title VII – Employment Title VII prohibits employers from discriminating against job applicants or employees on the basis of race, ethnicity, religion, sex, or national origin. Title VII explicitly recognizes two forms of discrimination: intentional discrimination, and disparate impact discrimination. The latter prohibits employers from using employment practices that while on their face are neutral, have a disproportionately adverse effect on members of a protected class. For example, employers may violate Title VII if they use tests for job applicants that disproportionately screen out female applicants.
As this law relates to affirmative action or employer diversity initiatives generally, Title VII is fundamentally different from Title VI. Unlike Title VI, Title VII generally does not allow race or other protected characteristics to be used in employment decisions, except in very limited circumstances. Courts have never recognized the importance of furthering workplace diversity alone as a basis for using race or other protected characteristics in employment decisions; this is in contrast to Title VI, under which, as mentioned above, the Supreme Court has recognized that the important of furthering campus diversity can be a basis for using race as a factor (among others).
The Supreme Court has established that race can be used as a factor in employment decisions in the following limited circumstances only: to remedy previous discrimination by the employer, or to avoid the discriminatory impact of an otherwise non-discriminatory policy (disparate impact).
At Stake in the Harvard Case for Title VI and Title VII The Harvard Supreme Court case involves a challenge to Harvard and UNC’s admissions policies, both of which allegedly use race as a factor among others in admissions decisions. Because it deals with college admissions, the case is governed by Title VI, and any Court decision would only affect – legally – that statute. The case does not touch upon Title VII – legally – whatsoever.
At stake is whether colleges and universities can continue to use race as one factor among many in admissions decisions. The Court could – and is perhaps likely to – decide that race may not be used under any circumstances in admissions decisions, and effectively render affirmative action in college admissions unlawful.
Such an outcome would have no immediate direct impact – again, legally speaking – on Title VII and the use of race in employment decisions. Indeed, what is at stake in the Harvard case is already prohibited under Title VII. Employers may not use race as a factor whatsoever in employment decisions, except in very limited circumstances as articulated above.
Long-term, however, should the Supreme Court do away with affirmative action in college admissions programs, employer DEI programs could be the next to receive similar legal scrutiny. Already, several interest groups have begun to prepare lawsuits against companies – or have already done so – challenging employers’ use of race or gender in employment decisions. For example, in one lawsuit, a pharmaceutical employer’s fellowship program designed to address gaps in recruiting, retaining, and promoting diverse talent was challenged as discriminatory against White and Asian-American applicants by a group of Virginia healthcare professionals. Another lawsuit filed against Starbucks alleged that the company’s publicly available diversity goals – including “achieving BIPOC representation of at least 30% at all corporate levels” – were unlawfully discriminatory.
In the wake of a Supreme Court decision in Harvard, these lawsuits could proliferate considerably and receive increased media attention, with a final result being the Supreme Court considering a case involving the legality of an employer’s DEI program. For example, it is conceivable that a plaintiff could allege that company-wide aspirational diversity goals are being implemented as de facto quotas. In the end, the current Court could significantly restrict or outlaw altogether the current use of certain DEI programs and initiatives. Such a result, however, is likely years away at minimum, if it does come to pass at all.
