Overview of the webinar

On 29 June 2023, the US Supreme Court issued its decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College,1 and reversed the longstanding rule that race can be considered as a plus factor among many factors when making higher education admissions decisions. Through this ruling, the court effectively ended affirmative action in college and university admissions.

The decision does not directly address affirmative action in employment, which already prohibits the use of plus factors. Thus, the immediate impact on employers will likely be limited. Nevertheless, the ripple effects of the court's decision may create added risks for employers and ultimately impact affirmative action and diversity initiatives in the long run.

In the employment arena, there are two forms of affirmative action mandatory and voluntary. Put simply, mandatory affirmative action is required by applicable law, while voluntary affirmative action is not. As described in more detail below, mandatory affirmative action includes legal mandates applicable to covered federal contractors and subcontractors (covered contractors); voluntary affirmative action includes diversity-focused initiatives by companies that are not covered contractors. In addition, affirmative action in the employment context may target otherunderrepresented protected classes in addition to race.

Affirmative action is defined by OFCCP regulations as the obligation on the part of the contractor to take action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran. See 41 CFR 60-1.4, 60-300.5, and 60-741.5. The regulations state that the affirmative action obligation reaches all terms, conditions, and privileges of employment, including recruitment, promotion, termination, and compensation.