Diversity in the Workplace

On September 30, 2019, a federal judge made a critical decision regarding Harvard’s race-conscious admissions program.[1]  A lawsuit brought against Harvard by the Students for Fair Admissions accused Harvard of considering race in their admissions, and therefore, discriminating against Asian American applicants. 

To ensure diversity, Harvard relied on race-conscious admission criteria.  It used a tip or plus factor when looking at race as one factor among many that it used.  For example, if Harvard was looking to admit more Hispanic students, such applicants would get a plus on their applications. 

This was a crucial case since the decision would affect all other schools that consider race as a factor.  To be allowed to use race-conscious admissions criteria, Harvard’s practices had to meet “strict scrutiny.”  Strict scrutiny is a standard used in discrimination cases when there is a suspect class at issue, such as race.  Harvard, essentially, had to prove that its admissions program was narrowly tailored to further a compelling interest.

In the case, Harvard indicated that its compelling interest was a desire for student body diversity.  Some goals tied to this compelling interest were to prepare students of all races and backgrounds to assume leadership roles in society and achieve benefits that flow from a student’s exposure to different backgrounds, races, and life experiences.  The court agreed that this was a compelling interest.

Next, Harvard had to prove that the compelling interest was narrowly tailored to the goals.  The court decided that the compelling interest of having a diverse student body was narrowly tailored to meet the goals.  The court also states that there was no persuasive evidence indicating any racial animus or conscious prejudice against Asian Americans.  Since strict scrutiny was met, the court decided that Harvard could continue to use its race-conscious admission program. 

Tiffany Jones, director of higher education policy at the Education Trust, made a statement after the decision in the Harvard case, “[t]his decision helps to reinforce this idea that there are legal ways to incorporate a racial-equity focus in efforts of higher education leaders to create opportunities and support the success of underrepresented students of color.”[2] This arguably translates to the business world; if businesses want a diverse workplace, then they must select from a diverse applicant pool at the educational level.  

Anti-discrimination efforts are important, but businesses and companies need to be mindful to not reverse discriminate, which is analogous to what the Plaintiffs were arguing in the Harvard case.  Reverse discrimination occurs when a business creates programs or policies to include minorities, but inadvertently discriminates against a majority. 

In Ricci v. DeStefano,[3] a case that went all the way to the United States Supreme Court, reverse discrimination was found.  In this case, firefighters took a test for a promotion.  It turned out that whites did significantly better on the exam than other minorities, and the City of New Haven discarded the test.  The white firefighters brought suit for reverse discrimination because they should have gotten the promotions, and the test was discarded so the City would not be discriminating against minorities. 

The Supreme Court agreed with the white firefighters.  It held that “[f]ear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.”   

The Harvard case decision indicates that the court expects race-conscious admissions to be a temporary process.  The court believes that at some point, we will see race as a fact, but not a defining fact, or the fact that indicates what is important.  The court seems to believe that our society is not there yet, and, therefore, race may be a consideration in the educational context.  Since Harvard and similarly situated universities may continue to use race as a factor to promote minority enrollment, businesses can hope to continue to see growth in minority representation in the hiring pool from these institutions.

[1] Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (Harvard Corp.), 397 F. Supp. 3d 126 (D. Mass. 2019) (appeal filed Oct. 11, 2019).

[2] https://www.npr.org/2019/10/01/730386096/federal-judge-rules-in-favor-of-harvard-in-admissions-case

[3] 557 U.S. 557, 129 S.Ct. 2658 (2009).

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