Bernstein Shur’s Kai McGintee Quoted in Law360: ‘What Harvard’s High Court Case Could Mean For Employers’


Bernstein Shur’s Kai McGintee Quoted in Law360: ‘What Harvard’s High Court Case Could Mean For Employers’

Courtesy: Law360 Employment Authority

What Harvard’s High Court Case Could Mean For Employers

By Vin Gurrieri

Law360 (Feb. 2, 2022) – The U.S. Supreme Court recently agreed to hear a challenge to Harvard University’s race-conscious admissions process, a case that private employers are eyeing because it could create momentum for the justices to scrutinize voluntary workplace affirmative action programs.

In January, the justices accepted an appeal by Students for Fair Admissions, a group challenging affirmative action admission programs at Harvard, and consolidated it with a similar case SFFA filed challenging the admissions process at the University of North Carolina as unconstitutional. The schools both prevailed at the district court level, and Harvard’s win was upheld by the First Circuit. The Fourth Circuit had yet to rule on an appeal in UNC’s case when the high court consolidated the cases.

SFFA has argued in court briefs that Asian Americans are penalized for their race to the benefit of less-qualified Black or Hispanic applicants and that Harvard engages in the sort of “racial balancing” that is prohibited under high court precedent. But Harvard has argued it uses race only as a “plus factor” in a narrowly tailored way in order to achieve on-campus diversity and the benefits that flow from it.

While the case arises in the context of higher education, employment attorneys acknowledge that a sweeping ruling by the justices that curtails schools’ race-conscious admission policies could have a chilling effect on efforts by employers to diversify their staffs. It also may build momentum for the justices to take a fresh look at a separate bucket of case law that pertains to voluntary employer diversity programs.

“Should the Supreme Court rule in the Harvard [and] UNC cases that affirmative action admission policies are unconstitutional, we can expect to see a ripple effect on diversity initiatives being advanced in schools and workplaces throughout the country,” said Kai McGintee, chair of Bernstein Shur Sawyer & Nelson PA’s investigations and resolutions practice group, who represents educational institutions and employers.

Such a ruling, she said, could “invite legal challenges to diversity programs and voluntary affirmative action plans by employers,” noting that so-called reverse employment discrimination claims have been “gaining traction” over the past few years and that similar suits should be expected if the high court rules against Harvard and UNC.

“While the legal framework is different in the employment context, and voluntary affirmative action plans have long been permissible under [Equal Employment Opportunity Commission] guidance, in the wake of such a ruling, it would not be unexpected to see these programs come under judicial scrutiny next,” McGintee said.

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