The Supreme Court’s recent ruling on affirmative action has sparked discourse on not only diversity in education, but also diversity in employment. The decision brings to light additional questions for Federal contractors and subcontractors (“contractors”) who have historically written and maintained affirmative action programs. While the terminology “affirmative action” is the same, it’s important for contractors to know that the affirmative action requirements they follow are separate from and unchanged by the Supreme Court’s ruling on affirmative action in higher education.
Affirmative Action in Higher Education v. Federal Contracting
Impacting higher education institutions, the Supreme Court’s ruling struck down racial preferences in college admissions. The two cases brought to the Court argued that Harvard’s practice of affirmative action violated Title VI of the Civil Rights Act of 1964 and that UNC’s violated the 14th Amendment’s equal protection clause. In both cases, it was argued that the admission policies at these schools discriminated against Asian-American applicants.
Affirmative action requirements for contractors stem from Executive Order 11246, signed by President Lyndon B. Johnson in 1965. This Order mandates that contractors take affirmative action to ensure equal employment opportunity based on race, color, religion, sex, and national origin. Subsequent laws added protected veterans and individuals with disabilities as groups for which contractors must take affirmative action. Current rules require contractors to develop written affirmative action plans and engage in outreach efforts to diversify their workforces by ensuring there are no barriers to equal opportunity for groups (e.g. racial or gender) that have historically been disadvantaged in employment.
For contractors, the Court’s ruling will likely have the greatest implication for diversity outreach over time. Higher education is a pipeline used by many employers to source qualified diverse candidates. Forward-thinking employers will realize quickly that the demographics of graduates from certain institutions may look different just a few years from now. While a pool of diverse graduates may remain, the lack of affirmative action in higher education may influence which colleges and universities have the greatest diversity among their graduates. Employers, especially contractors, that have historically sourced diverse candidates from particular schools should consider whether alternative schools may better serve their diversity efforts in the future.
Diversity-minded employers should also take this opportunity to evaluate job qualifications. Replacing education requirements with skills-based requirements can offer employers a broader pool of candidates and a larger variety of sources from which to attract them. Employers who can diversify their sources will be better able to attract top talent and less impacted by shifting college student demographics.
As HR and talent acquisition professionals contemplate recruiting in light of this change, it is crucial to understand the distinction between higher education admissions and federal contracting and to be able to answer questions from applicants and employees. Federal contracting involves ensuring equal opportunity is afforded in employment practices. The aim of affirmative action in federal contracting is to create a level playing field for historically disadvantaged groups, ensuring that they have fair access to employment opportunities with employers providing goods and services to the government. This objective remains separate from the considerations surrounding diversity and educational benefits in higher education admissions. Higher education admissions and federal contracting operate within distinct legal frameworks and serve different purposes. It is important to recognize the nuances of these contexts to avoid confusion and understand that affirmative action in federal contracting continues to be a vital tool in promoting diversity and combating discrimination in the workforce.
Addressing questions about the ongoing legality of DEI programs in employment, EEOC Chair Charlotte Burrows stated that the recent Supreme Court Ruling “does not address employer efforts to foster diverse and inclusive workforces or to engage the talents of all qualified workers, regardless of their background. It remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.”* For contractors, affirmative action continues to offer a formal, data- and outreach-driven mechanism for both self-monitoring and continuous improvement of diversity and equal opportunity efforts.
*HR Works cautions employers to remain cognizant of a growing number of State laws limiting DEI programs.