EEOC Commissioner Warns Corporations That Continue to Hire/Promote Based on Race After Supreme Court Barred ‘Affirmative Action’ in College Admissions

The U.S. Supreme Court ruled 6-3 last month that race-based admissions policies in colleges and universities violate the Equal Protection Clause of the Fourteenth Amendment.

While the issue in that case concerned admissions, race-based policies in the workplace could be on the shopping block.

Andrea R. Lucas, a commissioner on the U.S. Equal Employment Opportunity Commission (EEOC), noted in a Reuters op-ed that businesses typically don’t use the words “affirmative action” in their so-called diversity programs. They do use terms like “equity.”

We all know what that means.

Conservative groups, lawmakers, and individuals have challenged so-called diversity programs in recent years. Lucas said the pressure on companies in the wake of the Supreme Court decision “has been enabled by common misunderstandings of the civil rights rules governing employers, influenced by the previous status of affirmative action in higher education admissions.”

The EEOC is charged with enforcing equal opportunity in the workplace, Lucas said, not equity.

“Our mission is to prevent and eliminate discrimination, not impose ‘equitable’ outcomes.”

Corporations with “diversity, equity, and inclusion” plans (DEI) should take the hint.

After the Supreme Court sanctioned race as a “plus” factor in admissions in 2003, employers apparently felt free to do the same in hiring and promotions. But Lucas said that in her experience, companies “don’t fully appreciate the distinction between what the Supreme Court previously deemed permissible ‘affirmative action’ in the context of higher education admissions versus in the employment context.”

There are distinct but similar statutory sections of the Civil Rights Act — Title VI and Title VII, respectively — that govern the education and employment contexts. Prior to today’s ruling, the Court permitted universities to use race as a factor in admissions, based on their interest in promoting “diversity.” Not so in the employment context. The Court never has blessed employers taking race-conscious employment actions based on interests in workforce diversity.

Not so in the employment context.

Employers are not allowed to use race in decisions related to employment.

Lucas acknowledged that the court allowed employers to consider race and sex “in very limited circumstances as part of voluntary, remedial affirmative action plans” — temporary, narrowly tailored remedial plans, justified by a “strong basis in evidence.”

Under such a standard, Starbucks’ DEI programs, for example, are not sufficient to justify basing employment decisions on race or sex.

Lucas advises employers to review their DEI programs in the wake of the Supreme Court’s racial preferences ruling.