Supreme Court’s Affirmative Action Ruling Could Impact Workplace DEIB Programs
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The U.S. Supreme Court issued several consequential decisions as its most recent term ended, including addressing affirmative action programs in college admissions. While these rulings will likely not directly affect employers, they may impact workplace diversity, equity, inclusion and belonging (DEIB) initiatives, including how organizations promote and implement them.
This article provides an overview of the Supreme Court’s affirmative action rulings. It explores how these rulings may impact workplaces in 2023 and beyond to help employers prepare for potential changes and navigate the evolving labor and employment law landscape.
Supreme Court’s Rulings
In Students for Fair Admission Inc. v. President & Fellows of Harvard College and Students for Fair Admissions Inc. v. University of North Carolina, the Supreme Court struck down affirmative action programs at the University of North Caroline and Harvard University, holding that the universities’ affirmative action programs violated the Equal Protection Clause of the U.S. Constitution and Title VI of the Civil Rights Act of 1094. In doing so, the court effectively overruled its 2003 decision of Grutter v. Bollinger, which allowed universities to consider race—among other factors—in university admissions because diversity in education was considered a legitimate aim. As a result, these rulings will likely end the consideration of race in university admissions for private and public institutions.
The Rulings’ Impact on Workplace DEIB Programs
The Supreme Court’s affirmative action rulings did not change any employment-related laws; however, they could create a framework to challenge race-based recruitment and workplace DEIB programs. As a result, they could have an indirect effect on DEIB initiatives and other programs that promote workplace diversity.
Title VII of the Civil Rights Act prohibits covered employers from discriminating against applicants and employees based on race, color, religion, sex and national origin. While the Supreme Court has approved extremely limited race-conscious hiring plans to address past discrimination by a particular employer, it has not created an exception for making race-conscious employment decisions to improve workplace diversity. As a result, the Supreme Court’s decisions regarding affirmative action programs in college admissions could have the following impact on employers:
Individual Lawsuits
While the Supreme Court’s rulings did not directly address hiring or employment practices, employers may face increased scrutiny over their hiring practices and DEIB initiatives. This will likely take the form of individual reverse discrimination lawsuits, with applicants or employees claiming to be disadvantaged by an employer’s DEIB initiatives. For example, employers that rely on DEIB programs that impact employment decisions could be at a higher risk of potential litigation than those that simply offer employee resource groups (ERG). As a result, the Supreme Court’s ruling could impact individual hiring and promotion decisions for organizations with a strong public commitment to increasing workplace diversity.
Mentorship Programs, Affinity Groups and Other DEIB Programs
Some organizations offer mentorship programs, affinity groups (or ERGs) or other DEIB programs to address and strengthen workplace diversity. The Supreme Court’s recent decisions could impact these programs and groups. While it’s unlikely that employers will need to eliminate these programs and groups in light of the rulings, organizations may face legal challenges for limiting program and group membership based on a specific protected characteristic, such as race or gender.
Affirmative Action for Federal Contractors
Employers who are covered federal contractors are required to engage in affirmative action, meaning they must take action to recruit and advance qualified minorities, women, persons with disabilities and covered veterans. While the Supreme Court’s decision does not directly impact this requirement, federal contractors should consider reviewing any actions they take to comply with their regulatory obligations to ensure they don’t run afoul of federal law.
Considerations for Employers
The Supreme Court’s rulings come at a time when many employers are exploring DEIB programs. While dialing back DEIB programs is an option, these rulings do not mean employers can’t or shouldn’t have such initiatives. However, organizations may need to be more critical and thoughtful about designing and implementing their DEIB programs.
With so much uncertainty, employers may need to navigate changing legal landscapes and adjust their DEIB programs and strategies accordingly. This may mean casting a wider net when recruiting. For example, employers can advertise job openings in publications, attend more career fairs or use multiple online channels to expand their talent pool. Employers can also continue to focus on creating an inclusive workplace where employees feel they belong and are treated fairly. Additionally, reviewing workplace policies and practices can help employers ensure they do not reflect implicit bias or illegal impact on individuals based on protected characteristics.
Takeaway
How the Supreme Court’s affirmative action decisions will impact workplace DEIB programs and initiatives is a developing issue, and it’s currently unclear what the landscape will look like for employers. Time will tell whether these rulings will impact or alter established labor and employment laws and workplace DEIB practices. Awareness of these cases and their potential effects on workplaces can help employers prepare and feel confident in their ability to navigate any changes.
Employers should monitor the situation carefully since this is a rapidly developing issue. Consulting with legal counsel can help ensure that employers’ DEIB programs comply with any changes or legal developments.
For more workplace resources, contact RISQ Consulting today.
- Published in Blog
Employer Takeaways From the Speak Out Act
This article is from RISQ Consulting’s Zywave client portal, a resource available to all RISQ Consulting clients. Please contact your Benefits Consultant or Account Executive for more information or for help setting up your own login.
On Nov. 16, 2022, the U.S. House of Representatives passed the Speak Out Act, prohibiting courts from enforcing nondisclosure and nondisparagement clauses between employers and their employees and independent contractors that were in place before sexual harassment and assault disputes. The U.S. Senate signed the bill on Sept. 29, 2022. President Joe Biden has indicated his support for the law, so it’s likely he will soon sign the bill into law. As the law will take immediate effect once signed, employers need to understand how the Speak Out Act may impact them in order to adequately prepare their organizations.
This article explains the Speak Out Act and outlines steps employers can take to prepare and protect their organizations.
What Is the Speak Out Act?
The Speak Out Act is part of a recent bipartisan effort to curb unprofessional and illegal workplace behavior. The U.S. Congress found that 81% of women and 43% of men have experienced some form of sexual harassment or assault throughout their lifetime. Additionally, 1 in 3 women have faced harassment in the workplace, and approximately 87% to 94% of those who experience sexual harassment never file a formal complaint.
Congress also found the following when drafting the bill:
- Sexual harassment and assault remain pervasive in the workplace and throughout society, affecting millions of individuals.
- Sexual harassment in the workplace forces many victims to leave their occupations or industry or pass up opportunities for advancement.
- Victims and survivors of sexual harassment and assault must be able to report and publicly disclose the incidents to combat this abuse.
- Nondisclosure and nondisparagement provisions in agreements between employers and their current, former and prospective employees and independent contractors can perpetuate illegal conduct. They silence victims and survivors of sexual harassment and assault, enabling perpetrators to continue their abuse.
- The prohibition of nondisclosure and nondisparagement clauses will empower survivors to come forward, hold perpetrators accountable for their abuse, improve transparency around illegal conduct, enable the pursuit of justice and make workplaces safer and more productive for all workers.
The bill follows the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which was enacted in February 2022 and invalidated mandatory pre-dispute arbitration agreements in cases of sexual harassment and assault.
The Speak Out Act would render void any pre-dispute nondisclosure and nondisparagement provisions between employers and employees involving sexual harassment and assault. It only prohibits the enforcement of agreements entered into before a dispute arises, such as agreements made at the start of employment. This bill would apply to current, former and prospective employees as well as independent contractors.
The bill does not define “disputes,” so it’s unclear whether the prohibition of nondisclosure and nondisparagement contract clauses would apply only to formal litigation or to informal complaints as well. Additionally, it defines nondisclosure agreements broadly to include any contractual provision requiring a party not to disclose or discuss conduct or information covered by the terms and conditions of a contract or agreement, including the existence of a settlement.
The act would not prevent employers from entering into standard confidentiality agreements—which prevent one or both parties from revealing information about resolved claims or settlements—with employees when settling claims or demands of sexual harassment or assault. However, some states and localities have enacted laws restricting confidentiality agreements involving sexual harassment and assault claims. The Speak Out Act would not interfere with those existing laws, and it would allow other states and localities to create more restrictive laws regarding nondisclosure and nondisparagement agreements. It may also affect arbitration and grievance procedures established in collective bargaining agreements.
Considerations for Employers
As the Speak Out Act will take immediate effect once signed into law by the president, employers should consider taking action now to make certain they comply with the new law’s requirements. Employers should consider taking the following actions to prepare and protect themselves:
- Review existing employment agreements. Employers should review their preemployment and standard employment agreements to ensure they meet the act’s requirements. If employers rely on independent contractors, they should do the same for their independent contractor agreements.
- Protect business interests. If employers use nondisclosure agreements to protect trade secrets, proprietary information and confidential data, they should consider working with local legal counsel to confirm their agreements are drafted in a way that complies with the bill while protecting their organization’s legitimate business interests.
Additionally, employers can avoid issues related to the new bill by preventing sexual harassment and assault from happening in the workplace. Employers can implement the following strategies to combat sexual harassment and assault at work:
- Verify workplace policies comply with current employment laws and regulations.
- Provide employees with copies of the employee handbook or workplace policies.
- Train managers to recognize and address issues involving sexual harassment and assault.
- Educate employees on proper workplace behavior.
- Investigate any complaints or issues of sexual harassment and assault promptly.
- Enforce workplace policies consistently.
Evaluating employment agreements and workplace policies will enable employers to protect and strengthen their organizations by complying with current employment laws and providing employees with a safe work environment.
Summary
Support for ending mandatory arbitration and nondisclosure agreements in the workplace has been on the rise. The Speak Out Act is intended to allow victims of sexual harassment and assault to speak publicly in order to prevent perpetrators from continuing to harm people. Understanding the bill can aid employers in preparing for the law’s enactment as well as establishing policies to protect employees from sexual harassment and assault.
For more HR-related resources, contact RISQ Consulting today.
- Published in Blog