As a matter of law, the Supreme Court’s rejection of race-conscious admissions in higher education does not by itself prevent employers from promoting diversity in the workplace.

At least that’s the conclusion of lawyers, diversity experts and political activists across the spectrum — from conservatives who argue that robust affirmative action programs are already illegal to liberals who say they’re on solid legal ground.

But many experts say that, in practical terms, the ruling will discourage corporations from implementing ambitious diversity policies in hiring and promotion — or force them to override existing policies — by encouraging litigation under the existing legal standard.

After Thursday’s decision affecting the admissions process to law firms supported companies review their diversity policy.

“I worry about corporate counsel who see it as their primary job to keep organizations out of court — I worry about over-compliance,” said Alvin B. Tillery Jr., director of the Center for the Study of Diversity and Democracy at Northwestern University. , which advises employers on diversity policies.

Programs to promote the hiring and promotion of African Americans and other minority workers have been prominent in corporate America in recent years, particularly in the racial reckoning following the 2020 killing of George Floyd by a Minneapolis police officer.

Even before the decisions in the college cases, corporations felt legal pressure on their diversity efforts. In the last two years, the lawyer representing a free market group sent letters to the user American Airlines, McDonald’s and many other corporations demanding that they rescind hiring policies that the group says are illegal.

A free-market group, the National Center for Public Policy Research, acknowledged that Thursday’s result was not directly related to its fight against affirmative action in corporate America. “Today’s decision is not relevant; it was a special earmark for education,” said Scott Shepard, a member of the center.

Still, Mr Shepard claimed victory, arguing the decision would help deter employers who might be tempted to overstep the law. “After the decision, it couldn’t be clearer that fudging it at the edges” is not allowed, he said.

(American Airlines and McDonald’s did not respond to requests for comment on their hiring and promotion policies.)

Charlotte A. Burrows, who was appointed by President Biden to chair the Equal Employment Opportunity Commission, was also quick to say that nothing had changed. She said the decision “does not address employers’ efforts to foster a diverse and inclusive workforce or engage the talents of all skilled workers regardless of their background.

Some companies in the crosshairs of conservative groups underscored this. “Novartis’ DEI programs are tailored, fair, equitable and compliant with existing laws,” the drugmaker said in a statement, citing diversity, equity and inclusion. Novartis also received letter from the lawyer representing Mr. Shepard’s groupdemanding that it change its law firm hiring policy.

Except for government contractors, affirmative action policies in the private sector are largely voluntary and governed by state and federal civil rights law. These laws prohibit employers from basing hiring or promotion decisions on characteristics such as race or gender, either for or against a candidate.

The exception, said Jason Schwartz, a partner at the law firm Gibson Dunn, is that companies can take race into account if members of a racial minority were previously excluded from a job category — say, an investment bank hiring black bankers after excluding blacks. people from such jobs for decades. In some cases, employers may also consider the historical exclusion of a minority group from the industry—such as blacks and Hispanics in the software industry.

The logic of the Supreme Court’s decision on college admissions could fundamentally threaten some of these programs, such as those aimed at addressing industry-wide discrimination. But even here, the legal case may be stretched, because the way employers typically make hiring and promotion decisions is different from the way colleges make admissions decisions.

“The court seems troubled that the admissions programs at issue treated race as a plus regardless of the individual student,” Pauline Kim, a professor at Washington University in St. Louis, said in an email. Louis, which specializes in employment law. But “more often than not, hiring decisions are individualized decisions” that focus on the match between the candidate and the job, she said.

A more meaningful effect of the court’s decision is likely to be more pressure on policies that were already on a questionable legal footing. These could include leadership acceleration programs or internship programs that are only open to members of underrepresented minority groups.

Many companies can also find themselves vulnerable to policies that comply with the Civil Rights Act on paper but violate it in practice, said Mike Delikat, an Orrick partner who specializes in employment law. For example, company policy may motivate recruiters to seek a more diverse pool of candidates from which to make hiring decisions regardless of race. But if recruiters implement the policy in a way that effectively creates a racial quota, he said, that’s illegal.

“The devil is in the details,” Mr. Delikat said. “Did they interpret that to mean, ‘Come back with 25 percent of the interns who have to come from an underrepresented group, and if they don’t, you’re going to be labeled a bad recruiter’?”

Supreme Court college admissions cases have been largely silent on these employment-related issues. However, Mr. Delikat said, his firm has been advising clients since the court agreed to hear the cases that they should ensure their policies are airtight because an increase in litigation is likely.

In part, this is due to the political right’s growing attack on corporate policies focused on diversity in hiring and other social and environmental goals.

Florida Gov. Ron DeSantis, who is seeking the Republican presidential nomination in 2024, regretted “the virus of the awakened mind” and declared Florida “the state where awakening will die.” The state passed the legislation limit variety training in the workplace and has limited state pension funds from basing investments on “awakened environmental, social and corporate considerations”.

Conservative legal groups have also mobilized on this front. A group led by Stephen Miller, a White House adviser in the Trump administration, argued in letters to the Equal Employment Opportunity Commission that diversity and inclusion policies several large companies were illegal and asked the commission to investigate. (Mr. Miller’s group did not respond to a request for comment on the cases.)

The National Center for Public Policy Research, which questions corporate diversity policies, does sued Starbucks directors and officers after refusing to scrap the company’s diversity and inclusion policy in response letter require them to do so. (Starbucks did not respond to a request for comment for this article, but its executives told the group that “it is not in Starbucks’ best interest to accept the request and withdraw the policy.)

Mr. Shepard, a fellow at the center, said more lawsuits were “reasonably likely” if other companies did not accede to demands that they scale back their diversity and inclusion policies.

One modest way to do that, said David Lopez, former general counsel for the Equal Employment Opportunity Commission, is to design policies that are race-neutral but still likely to promote diversity — such as weighting whether a candidate has overcome significant barriers.

Mr. Lopez noted that in the Supreme Court’s majority opinion, Chief Justice John G. Roberts Jr. argued that the university could take into account the impact that overcoming racial discrimination would have on the candidate if the school did not consider the candidate’s race per se.

Dr. But Northwestern’s Tillery said such changes to corporate diversity programs could be an overreaction to the ruling. While the federal Civil Rights Act of 1964 generally precludes hiring and promotion decisions from being based explicitly on race, it allows employers to remove barriers that prevent companies from having a more diverse workforce. Examples include training managers and recruiters to ensure they do not unconsciously discriminate against racial minorities, or advertising jobs on certain campuses to broaden the pool of potential applicants.

Ultimately, companies appear to face a greater threat of lawsuits for discriminating against members of minority groups than lawsuits for discriminating against white people. According to the Equal Employment Opportunity Commission, about 2,350 were accused of this second form of employment discrimination in 2021, among 21,000 racial charges overall.

“There is a natural interest in picking your poison,” Dr. Tillery said. “Is this a lawsuit from Stephen Miller’s right-wing group that doesn’t live in the real world? Or is it a lawsuit from someone who says you’re discriminating against your workforce and can tweet about how sexist or racist you are?’

He added: “I’ll take Stephen Miller’s poison any day.”

J. Edward Moreno contributed reporting. Susan C. Beachy contributed research.

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