Abstract

Excerpted From: Michael J. Yelnosky, Racial Preferences in Employment after Students for Fair Admissions v. Harvard, 112 Georgetown Law Journal Online 74 (2023) (112 Footnotes) (Full Document)

The Supreme Court's recent decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA) will no doubt precipitate a battle royal over the legality of those aspects of the ubiquitous diversity, equity, and inclusion (DEI) programs of American businesses that involve the use of racial preferences in hiring or promotion. The Supreme Court has never addressed the question whether an employer can lawfully give a preference to a Black applicant in pursuit of operational benefits, such as increased innovation or improved problem-solving, associated with a more racially diverse workforce. The forces that have kept the issue out of the courts have shifted, and DEI programs are now squarely in the crosshairs of well-organized and well-funded opponents of racial preferences.

While reasonable minds disagree about the relative importance of the admissions practices of America's elite colleges and universities, no one can deny that the human resources practices of the country's employers impact the well-being of more than 150 million American workers. The stakes are high. The aim of this Essay is to provide a modest contribution to the conversation about the upcoming battle by describing the extant doctrine, previewing some of the arguments on which the fate of racial preferences in employment may turn, and making a few predictions.

Employers will likely lose the fight for the right to use racial preferences to pursue operational goals. On the other hand, the Supreme Court's precedents permit employers to use racial preferences to reduce a manifest underrepresentation of Black employees in a workforce, and Black employees are currently underrepresented in many job categories at many companies. This “manifest imbalance doctrine” could offer a way forward for many employers interested in using racial preferences to further integrate their workforces.

The Essay proceeds as follows. Part I reviews the Court's holding and rationale in SFFA and Part II reviews the Court's Title VII affirmative action jurisprudence. Part III is the attempt to predict, in the wake of SFFA, whether the Court would permit an employer to use racial preferences to achieve operational benefits or to reduce a manifest underrepresentation of Black employees in its workforce.

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The Weber-Johnson doctrine should survive, even if a majority of the current Justices disagree with its interpretation of Title VII. However, the Court could read the cases narrowly without overruling them and effectively shut down programs that do not closely mirror the “manifest imbalance” framework and the remedial impulse of those cases. By no means does the doctrine clearly protect programs that were created in the atmospherics of Grutter's approval of the use of racial preferences to build diverse student bodies and improve an institution's educational product. However, as I have tried to show, some number of those programs, perhaps a substantial number, should be able to withstand judicial scrutiny with just a tweak of the existing doctrine.

On the other hand, the business case for diversity as such seems unlikely to survive judicial scrutiny.

Although the ebbs and flows of affirmative action are likely to continue well into the future, for now the approaches most likely to keep alive employer freedom to better integrate their workplaces are the Weber-Johnson doctrine and the possibility of reconfiguring race-based programs under more broadly defined characteristics and experiences. 

Professor, Roger Williams University School of Law. © 2023, Michael J. Yelnosky. Professor Chin teaches Race and the Law and other courses at Lewis & Clark Law School.