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Employers weigh in on affirmative action case

Colleges and universities are not the only ones closely watching the affirmative action case on the U.S. Supreme Court’s docket. Employers are also weighing in, saying that the decision could have a dramatic impact on their hiring practices and in some cases subject employers to federal sanctions or disparate impact lawsuits.

In October, the justices will hear arguments in Fisher v. University of Texas at Austin, a case challenging the school’s use of race as one of several factors in admission decisions.

Employment lawyers say a ruling finding such policies unconstitutional would implicate companies’ efforts to maintain diverse workplaces.

“A lack of qualified applicants — particularly in specialized fields such as engineering — is a concern for our companies,” said David W. DeBruin, managing partner of the Washington office of Jenner & Block.

DeBruin authored an amicus brief in the case on behalf of a group of the country’s largest companies that urged the court to rule in the university’s favor.

“These companies are committed to having a diverse workplace, [and] these kinds of measures are critical to be able to ensure that they can do that,” he said.

In their amicus brief, the companies argued that the court should follow its reasoning in the 2003 case Grutter v. Bollinger, which held that the state of Michigan had a compelling interest in creating diversity at the University of Michigan Law School, and therefore the school’s narrowly tailored use of race in admissions decisions was permitted.

The policy at issue in Fisher was put in place after the Grutter ruling when school officials, who previously barred the use of race as a factor in admission decisions, reintroduced race as one of many factors in an effort to increase enrollment from underrepresented minority groups. The move, school officials said, was to give students the benefit of a diverse student body.

But two applicants who were denied admission filed suit, claiming the new policy violated the Equal Protection Clause. Both a U.S. District Court judge and the 5th Circuit upheld the school’s policy, and the Supreme Court granted certiorari in February.

The case quickly drew the interest of employers.

“What the companies here largely are fighting for is to have as broad a pool of qualified applicants as possible, taking into account the full range of diversity the Supreme Court has protected in Grutter and other cases,” DeBruin said.

David J. Goldstein, a shareholder in the Minneapolis office of the employment law firm Littler Mendelson, agreed.

“It’s insane to think that you can take into account absolutely everything about an applicant, but you are forbidden to consider race in a positive and appropriate manner,” said Goldstein, who submitted an amicus brief in the case on behalf of the American Association for Affirmative Action.

Draining the pool of applicants

Besides the Fortune 500 companies represented in DeBruin’s amicus brief, groups of small businesses, federal contractors and even the federal government —– which argued about the importance of diversity in recruiting military members and other federal workers — have chimed in as amici to urge the court to allow schools to consider race in admission decisions.

DeBruin said companies have the same interest in diversity that schools do, and their selection processes are similar.

“When our companies hire, they look at a whole range of factors regarding an individual: their background, the adversity they’ve had to overcome, the different experiences that they came to bear, their academic success and their other achievements,” DeBruin said. “Companies make a holistic decision — what we believe the University of Texas was trying to do here.”

Some attorneys have expressed concern about the perceived hostility toward affirmative action policies expressed by members of the court. For example, in his plurality opinion in the 2007 case Parents Involved in Community Schools v. Seattle School District No. 1, Chief Justice John G. Roberts Jr. stated: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

In the 2009 employment discrimination case Ricci v. DeStefano, Justice Antonin G. Scalia wrote a concurring opinion indicating his willingness to invalidate certain disparate impact provisions in Title VII, arguing that they effectively amount to affirmative action policies that violate the Equal Protection Clause.

“Would a private employer not be guilty of unlawful discrimination if he refrained from establishing a racial hiring quota but intentionally designed his hiring practices to achieve the same end?” Scalia wrote. “Surely he would. Intentional discrimination is still occurring, just one step up the chain.”

From that concurrence, “it’s not clear if Justice Scalia would even allow race to be considered as a factor” in admission decisions, Goldstein said.

Between a rock and a hard place

The effect on federal contractors could be even more direct, as pointed out in an amicus brief submitted by the Equal Employment Advisory Council.

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs requires federal contractors to take affirmative steps to ensure that no discrimination exists in any term, condition or privilege of employment, and to quickly address any discriminatory situation once it has been discovered.

“[T]he absence of a skilled and diverse labor pool to draw upon will not only make it difficult for federal contractors to avoid underutilization and adverse impact in the first instance, but will also make it difficult for contractors to satisfy [the] expectations to address such patterns once discovered,” the EEAC brief states.

What is more, the brief states, federal officials have increased scrutiny of federal contractors’ affirmative action efforts. In Fiscal 2011, 28 percent of investigations resulted in noncompliance findings, up from 18.6 percent the year before.

Even employers who are not bound by the same rules as federal contractors face potential legal trouble, since hiring politics that result in an under-representation of minority groups can potentially lead to disparate impact claims.

“There is a concern that you will have the law on one hand saying that you can’t think about race, and on the other hand Title VII and state laws saying you have to make sure your policies and practices are not disparately impacting certain classes,” Goldstein said. “It potentially puts employers in a very difficult position.”

Oral arguments in the Fisher case are scheduled for Oct. 10.

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