Monday, June 27, 2016

Fisher v. University of Texas & Employer Affirmative Action

The Supreme Court's decision in Fisher v. University of Texas, No. 14-981, likely has quite limited application to affirmative action policies in the employment context. In Fisher, the Court upheld the University's use of race-based affirmative action to promote student body diversity. The Court has long recognized -- since at least the 1977 Bakke decision -- that student body diversity is a constitutionally permissible goal for an institution of higher education. The protection of this goal is grounded in the right to academic freedom under the First Amendment and is entitled to substantial deference. 

In the employment context, by contrast, whether under Title VII of the Civil Rights Act of 1964 or under the U.S. Constitution, it seems doubtful that an employer will be able to justify racial discrimination as a means to promote diversity for its own sake.  

Under Title VII, permissible affirmative action is usually aimed at remedying manifest racial imbalances in traditionally segregated job categories. Under such circumstances, the employer's race-based action is consistent with the remedial purposes of the statute. E.g., United Steelworkers of Am. v. Weber, 443 U.S. 193 (1979).

Affirmative action can be even more difficult to justify under the U.S. Constitution than under Title VII. A governmental employer cannot rely solely on societal discrimination to justify a racial classification, and instead, there generally must be evidence that that particular governmental unit has engaged in discrimination. E.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986).

Employee diversity will rarely be closely related to an employer's operations. One exception may be where an employer works closely with an ethnically diverse community and its success depends on having a diverse workforce. In Petit v. City of Chicago, 352 F.3d 1111 (7th Cir. 2003), for example, the court held that the Chicago Police Department's affirmative action promotions did not violate white officers' constitutional equal protection rights: "[T]he CPD had a compelling interest in a diverse population at the rank of sergeant in order to set the proper tone in the department and to earn the trust of the community, which in turn increases police effectiveness in protecting the city."

Under Title VII, an employer can justify a practice based on sex, national origin, or religion if that characteristic is a "bona fide occupational qualification reasonably necessary to the operation of that particular business or enterprise." The BFOQ exception, however, is not available for an employment practice based on race or color, so it may be more difficult under Title VII than under the U.S. Constitution to justify affirmative action as a means to promote employee diversity that is not aimed at remedying discrimination.

One practical benefit that employers may enjoy from universities' affirmative action programs is a more diverse candidate pool. In its amicus brief supporting the University of Texas in the Fisher case, the U.S. government stated that a "pipeline" of well-qualified and diverse graduates is critical to national interests. Even if most employers cannot justify their own race-based practices as a means to promote employee diversity, they may be able to achieve the same result if the candidate pool is sufficiently diverse, merely by hiring the best qualified candidates.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.