In a pair of rulings that surprised no one, the U.S. Supreme Court has prohibited the use of race as a factor in college admissions decisions, regardless of the reason. Seen as a broader attack on the concept of affirmative action, the federal contracting community needs to know what impact these decisions will have, if any, on their mandated affirmative action programs.
The answer to that question is, not much. And that’s because the kinds of “affirmative action” at issue in the college admissions cases are all the kinds that your “affirmative action” plan is designed to prevent. In the world of private employment, the use of race as a factor when making employment decisions is already prohibited.
“Affirmative action” as most people understand that term, is not an option for private employers unless it is being used as a remedy for other discrimination, and is typically ordered by a court or law enforcement agency, not voluntary. So, if “affirmative action” is happening in your workplace, that likely means that the law has already been broken and you’re working to fix that. It is a sign that things are not well.
Certain state and/or local government workers, often first responders, might be subject to other, stricter affirmative action laws that do have strict quotas and the like. Those are separate from any federal affirmative action obligations, and those might be next in the crosshairs, vulnerable to challenge based on the rulings in the college admissions cases. But federal affirmative action for contractors is safe.
The entire point of your AAP is to ensure that “affirmative action” does not become necessary in the first place. The federal government has always defined affirmative action in this context as making sure discrimination does not happen. Everyone else understands that term to mean the polar opposite— intentionally taking into account characteristics like race, in contravention of the law, but to further the purpose of the law.
It’s a bit of a mind-bendy concept to begin with—break the law a little more in order to enforce it—but that’s essentially what “affirmative action” is. In employment, affirmative action is not a recognized exception to or exemption from the law. It’s what lawyers and judges call an “affirmative defense.”
That means a quota, even one used to remedy a past instance of discrimination, is never “legal,” but might nonetheless be allowed to pass without punishment if certain criteria are met (like a court orders you to do it). That’s not the same thing as being “legal,” and it signals that the beating heart of the law, the ultimate goal, is and always has been equal treatment.
Unfortunately, what they discovered when they passed these laws over half a century ago is that some people and organizations were just not going to get on board without a guiding hand, and sometimes a little reverse discrimination would be necessary to create a more even playing field for everyone on which to be treated equally. And not everyone agreed with that approach.
So, fifty-nine years later, it makes some sense for our society to examine the extent to which that approach has or has not worked, and whether or not it should be our strategy going forward. It can be uncomfortable but is likely a healthy exercise for a democratic republic such as ours.
We don’t know what the future of “affirmative action” will look like, but we have some predictions. We will go through a period of dismantling much of the “affirmative action” employed over the last six decades and people will argue about it, loudly. But they will also study these last six decades and the period we are entering into now will define the next era of “affirmative action,” whatever that might be.
But there will be a next era. We will learn what worked and what didn’t, and why. And we will develop new ideas, and new approaches as the Great Experiment that is our society continues to evolve. Like any growth process, it will be painful, but necessary to write the next great chapter of our story.
In the meantime, your AAPs are unlikely to change much as a result of these rulings. The biggest impact will likely be a move away from the term, “affirmative action.” Because if the rest of the world understands affirmative action to mean things like quotas, point systems, and set asides, and such, you don’t have an “affirmative action” plan and never did—you have an affirmative action prevention plan.
Just don’t go calling it an “AAPP.” That sounds ridiculous.