How the Supreme Court's affirmative action decision could affect diversity hiring practices

The U.S. Supreme Court recently issued an opinion related to affirmative action (Students for Fair Admissions, Inc. v. President & Fellows of Harvard College), which does not prohibit but could have implications for employers’ diversity hiring practices. In that case, the Court held that the use of race as a consideration in university and college admissions is unconstitutional, effectively barring the practice at educational institutions that accept federal money. The justices based their analysis on Title VI of the Civil Rights Act of 1964, with the majority finding that race-based affirmative action policies in college admissions violate the Equal Protection Clause of the U.S. Constitution’s 14th Amendment.

It may not be immediately clear how a case related to college admissions could have any impact on employers, including physician practices. But many are covered under Title VII of the Civil Rights Act of 1964, which makes it unlawful for an employer to discriminate against someone because of race, color, religion, sex (including pregnancy, childbirth, and related conditions, sexual orientation, and gender identity), or national origin. Title VII applies to employers with 15 or more employees, and it protects job applicants, current employees (including full-time, part-time, seasonal, and temporary employees), and former employees. Employers with fewer than 15 total employees, while not covered by Title VII, may be covered by equivalent state laws. In the Supreme Court’s decision, Justice Neil Gorsuch's concurring opinion generally suggested there was no reason to interpret Title VII any differently than Title VI, because both use similar wording to prevent discrimination. For this reason, it is possible that employers will be further limited in their ability to take into account racial diversity in hiring decisions. Although there is no formal opinion to that effect, this appears to be the direction in which the law is headed and how the Court may interpret Title VII.

For health care employers with a diversity program in place that considers race, the Court’s decision suggests that there is a risk their current policies could be found to be prohibited. Employers should take the time to review and evaluate all current initiatives and policies with legal counsel to assure they are compliant with current law. Employers who choose between otherwise equivalent candidates based on race may need to develop different protocols for selecting candidates and alternative methods for achieving diversity.

The Court’s decision does not mean that health care employers cannot achieve diversity goals and continue diversity initiatives, though they will need to be careful in how they describe such efforts both within and outside the organization. Employers also should review internal interviewing and hiring protocols to assure that decision-making is handled in an appropriate manner that can be justified as not race-based.

Health care employers will need to explore possible ways to improve diversity without running afoul of the law. This may require some creativity, especially for medical practices with limited resources. Some possible recruitment efforts might include the following:

• Enlarge the pool of possible candidates by using more and different recruiters,
• Advertise positions in more locations and on more platforms to reach a greater number and more diverse field of candidates,
• Modify job descriptions and announcements to make job opportunities accessible to a variety of applicants,
• Reach out to particular groups of potential employees if underrepresented in the workforce,
• Use leadership and mentorship programs to achieve greater diversity,
• Participate with local hospitals, fellowships, and residency programs to explore a broader range of potential candidates.

It is essential that employers continue with strong and consistent efforts to protect individuals from discrimination, mistreatment, and racism and to comply with all pertaining laws. Because employees are more likely to want to join and remain with such employers, this can be an effective part of an employer’s diversity program.

Due to ever-changing state and federal laws, there is no one global approach that will perfectly comply with every possible existing anti-discrimination law. It is important not to be overly cautious but to be aware of what your state requires as well as how the Supreme Court’s decision may impact your particular organization.

— Ericka Adler, JD

Additional reading

• We’re Keeping the FP Pathway Open to All the Best and Brightest (AAFP)
• An Ill-Advised Supreme Court Decision Could Impact Health Care in Underserved Communities (CNN)
• After Supreme Court’s Affirmative Action Decision, Attorneys General Set Their Sights on Employment DEI Programs (Cranfill Sumner/JD Supra)
• What the Supreme Court's Ruling on Affirmative Action Does and Does Not Do (CNN)

Posted on July 26, 2023, by FPM Editors