The Supreme Court is expected to provide a final decision in the cases against Harvard and the University of North Carolina (UNC) by the Students for Fair Admissions in the next month. The cases center around a long-held practice of using race as a factor in student admissions processes.

While these cases question the legality of using race as a factor in college admissions, it is important that employers understand that the decision in these cases will likely have no legal effect on affirmative action in employment.   

However, organizations that are required to prepare affirmative action programs, otherwise known as affirmative action plans or AAPs, should be prepared to address potential confusion or pushback regarding these efforts once a decision is handed down from the Supreme Court. 

Post-Decision Communication Plan 

To help minimize confusion amongst stakeholders such as employees and shareholders, employers required to abide by federal affirmative action regulations should consider preparing an internal and external communication plan with the following elements: 

• Statement on the organization’s stance on affirmative action in employment 
• Proactive communication to employees 
• Frequently asked questions (FAQs) to be used either internally, externally, or both 

Additionally, employers should consider including other information, including: 

• High-level statement on who the Office of Federal Contract Compliance Programs (OFCCP) is and what they enforce. 
• Contracts the organization has with the federal government or prime contractor (if a subcontractor), and generally why the organization is considered a federal contractor or subcontractor.
• Information regarding how affirmative action in employment is different than affirmative action in education. 
• Statement about how affirmative action as a federal contractor is a plan to ensure equal opportunity and positive outreach for women, minorities, Veterans and individuals with disabilities.
• Information highlighting what affirmative action is NOT (e.g. – it is not a quota system, preferential treatment, or a set-aside for specific groups).

DCI will continue to monitor the Supreme Court’s final decision in the Harvard and UNC matters, and will keep our clients apprised of any updates.