Diversity: Direct or Disguised? Recent Supreme Court Decisions Don't Resolve Whether and When You Can Focus on Race in Hiring Decisions

Beginning of article

In June, the Supreme Court garnered a great deal of attention when it handed down two decisions regarding affirmative action measures used by the University of Michigan's undergraduate and law school programs. The high court approved the holistic student admission process employed by the law school, but rejected the point-based process used for undergraduate admissions.

Some commentators believe these ground-breaking decisions, which generally recognize the importance of student-body diversity in public higher education, provide a green light for employers to consider race and ethnicity for the purpose of achieving a diverse workforce.

However, such an interpretation is probably a mistake. Nothing in the court's opinions in Grutter v. Bollinger (the law school case) and Gratz v. Bollinger (the undergraduate school case) expressly protects consideration of race, ethnicity or other protected classifications in the private employment context.

In fact, neither the outcomes nor the underlying reasoning of the high court's decisions applies directly to private employment decisions at all. Under the rules that currently govern discrimination in private employment, employers that directly consider race or other protected factors as part of a non-remedial diversity program remain at risk.

[ILLUSTRATION OMITTED]

That's not to say, however, that employers can't glean something from these decisions. In some instances, the logic and societal values acknowledged in these rulings could apply to the employment context.

This article provides an overview of the Michigan decisions, revisits prior decisions on affirmative action in employment and offers recommendations for tailoring workplace diversity programs within the confines of prevailing case law.

Case Background

To better understand the potential application of the Michigan cases to employment decisions, it's important to have some background on the two challenged affirmative action plans.

The plan used for undergraduate admissions automatically granted 20 points to certain minorities based on their race. (Applicants who earn 100 points are guaranteed admission.) The university also awarded 20 points for some race-neutral factors, such as attending socioeconomically disadvantaged high schools.

The law school plan did not involve a point system, but sought instead to create a "critical mass" of minority students and considered race as a "plus" along with other race-neutral factors, such as socioeconomic status.

Because the university is a public institution, the plaintiffs challenged the plans under the U.S. Constitution. Specifically, they argued that the affirmative action plans violated the Equal Protection Clause of the 14th Amendment, which provides that no state shall "deny to any …