In striking down the use of race as a factor in college student admissions in its decision involving Harvard College and the University of North Carolina, the U.S. Supreme Court included language regarding limits on the use of racial, gender and other demographics that has sounded constitutional legal alarm bells for all types of affirmative action, McGuireWoods Charlotte partner Brian Barger wrote in the Spring 2024 issue of The Procurement Lawyer, a newsletter of the American Bar Association Section of Public Contract Law.
Barger wrote that the high court “notably relied on case law concerning race in employment” in deciding the higher education admissions cases in June 2023.
“[T]he decision’s holdings and language have broader implications for corporate hiring practices, employee affirmative action, and other diversity, equity, and inclusion initiatives — the effects of which are already being felt,” he added.
The article explained that entities engaging in covered federal prime contracts or subcontracts must navigate complex affirmative action commitments beyond standard Equal Employment Opportunity policies. This includes developing annual affirmative action plans (AAPs) and extensive data analysis on hiring, promotion and compensation.
Removing unintended or discriminatory barriers to employment access and advancement achieves valid and important governmental, societal and moral goals, Barger wrote. However, “from some legal perspectives, federal employee affirmative action obligations as they have evolved over time implicitly encourage employers to achieve a form of racial, gender, and other workforce demographic alignment that crosses the legal line.” If courts later extend the reasoning from the Supreme’s Court’s college decisions to public and private employment activity, “some or all of the AAP and other affirmative action requirements imposed on federal contractors and subcontractors — or at least their application as currently enforced by OFCCP — may be struck down as unconstitutional.”