When the U.S. Supreme Court issued its landmark reversal of affirmative action in Students for Fair Admission v. Harvard and Students for Fair Admission v. UNC in June, the news reports and analysts were quick to emphasize that the ruling pertained to race-conscious admissions and other programming in education. Since that ruling, more litigation has ensued underscoring that similar arguments can be made against employers outside of higher education.

The American Alliance for Equal Rights (AAER), an organization backed by the same individuals behind the Students for Fair Admission organization, recently dismissed two lawsuits it brought in August against large law firms after the firms agreed to modify programs they had implemented to improve employment opportunities for diverse candidates.

Unlike the Students for Fair Admission case, in which the plaintiffs argued that race-conscious admissions violated the Fourteenth Amendment’s Equal Protection clause, in the suits against the law firms, AAER alleged that the law firms' diversity programs violated Section 1981 of the Civil Rights Act of 1866. Section 1981 is a post-Civil War federal law that prohibits discrimination in contractual relationships. The law often serves as the basis for claimed racial discrimination in employment. AAER argued on behalf of white law students who were interested in applying for the programs that the firms discriminated against them based on race in only considering law students from underrepresented backgrounds for the positions. AAER agreed to dismiss the suits after the firms agreed to stop limiting their programs to diverse applicants.

As these cases demonstrate, whether via a program like the law firm fellowships at issue or in everyday employee hiring practices, private companies who make hiring decisions based on race risk claims that the hiring decisions violate laws such as Section 1981, Title VII of the Civil Rights Act of 1964, or similar state laws. This is true even when the decisions are motivated by good intentions.

Simply put, while striving for a diverse workforce makes economic sense and remains a laudable goal, employers must find ways to pursue that goal without running afoul of state and federal employment discrimination laws. A brief refresher on hiring is thus in order.

Employers should review their job postings and application forms to ensure they are completely neutral as to any protected classifications. Next, those who select applicants for interviews must take care to base their selections on each applicant’s qualifications, credentials, experience, availability, or other relevant considerations for the job. Interviewees should take notes during or immediately after interviews that reflect the topics discussed, the candidate’s responses, and the interviewer’s impressions. Finally, applications, resumes, and interview notes should be maintained so that they can be used to help demonstrate the legitimate, nondiscriminatory reasons for a challenged hiring decision.

Reviewing internal hiring procedures and making necessary revisions, training of individuals involved in hiring, and establishing a process for creating and maintaining documentation will help employers avoid litigation. And when discriminatory failure to hire claims do arise, having solid documentation demonstrating that the candidate selected was, indeed, the best candidate for the job is the company’s best chance for avoiding liability.

Germaine Winnick Willett is a member of Ice Miller LLP’s Workplace Solutions Group. She and Ice Miller’s other labor and employment attorneys assist employers faced with employment discrimination, harassment, retaliation, wage and hour, contract, and other employment-related issues, draft employment policies, and provide advice and counsel regarding employer investigations.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.