The American First Legal Foundation and other organizations like it, have taken the position that all diversity, equity and inclusion programs are illegal since the Students for Fair Admissions Inc. decision from the U.S. Supreme Court. The groups have already filed actions against several companies for polices that include goals for the placement of people of color and women in leadership and leadership pipeline positions to match community demographics by a certain year; employee training and apprenticeship programs focused on underrepresented groups; and quantitative representation metrics for leadership incorporated into annual incentive compensation awards for senior leadership.
As higher education institutions, state and local governments, private employers and federal contractors grapple with understanding the impacts of the U.S. Supreme Court’s decision in Students for Fair Admissions v. President & Fellows of Harvard College, No. 20-1199 (U.S. June 29, 2023), it is not surprising that elected officials — including 13 state attorneys general — have markedly different views about the philosophy and effects of affirmative action and other race-conscious policies. So, what should potentially affected organizations do in response to this legal uncertainty? We suggest taking a breath and bringing method to the madness.
For the full alert, visit the Faegre Drinker website.
On June 29, 2023, the U.S. Supreme Court decided Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, and Students for Fair Admissions, Inc. v. University of North Carolina et al., holding that race-conscious admissions programs used by Harvard College and the University of North Carolina are constitutionally impermissible. Both public colleges and universities, and private institutions receiving federal funds, are prohibited from considering race in admissions decisions. As a result of the decision, institutions may also need to evaluate other areas in which educational services or benefits potentially take race into account, including but not limited to the provision of scholarships or grants. There may also be significant implications for employers’ voluntary affirmative action and DEI programs, as well as potential implications for mandatory affirmative action for government contractors, as a result of the decision.
On June 29, 2023, the U.S. Supreme Court decided Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 20-1199, and Students for Fair Admissions, Inc. v. University of North Carolina et al., No. 21-707, holding that the admissions programs used by Harvard College and the University of North Carolina violate the Equal Protection Clause of the Fourteenth Amendment.
All federal contactors subject to the jurisdiction of the Office of Federal Contractor Compliance Programs (OFCCP) must begin surveying applicants and employees for disabilities using a new and approved Voluntary Self-Identification form. Continue reading “Reminder: August 4 Deadline to Implement New Self-identification Form for Individuals with a Disability”
Familiar with this? It’s time to update your affirmative action plans. For the women and minorities plan, you gather your applicant data, prepare spreadsheets and update your written materials to reflect new goals and changes in your recruiting sources. For the veterans and individuals with disabilities plan, you update a bit and you’re done. Starting early next year, however, the rules will change making updates more onerous for employers. On August 27, 2013, the Office of Federal Contract Compliance Programs announced final rules for federal contractors regarding hiring and employment of disabled individuals and protected veterans and imposing new data retention and affirmative action obligations on contractors. The rules are expected to be published in the Federal Register shortly and will become effective 180 days later.
The key changes include:
- Benchmarks. Contractors must establish benchmarks, using one of two methods approved by the OFCCP, to measure progress in hiring veterans. Likewise, contractors must strive to hire individuals with disabilities to comprise at least seven percent of employees in each job group. The OFCCP says these are meant to be aspirational, and are not designed to be quotas.
- Data Analysis and Retention. Contractors must document and update annually several quantitative comparisons for the number of veterans who apply for jobs and the number of veterans that they hire. Likewise, for individuals with disabilities, contractors are required to conduct analyses of disabled applicants and those hired. Such data must be retained for three years.
- Invitation to Self-Identify. Contractors must invite applicants to self-identify as protected veterans and as an individual with a disability at both the pre-offer and post-offer phases of the application process, using language to be provided by the OFCCP. This particular requirement worries employers who know that the less demographic information they have about applicants, the better – especially when the application is denied. Contractors must also invite their employees to self-identify as individuals with a disability every five years, using language to be provided by the OFCCP.
Additional information, including with respect new requirements such as incorporating the equal opportunity clause into contracts, job listings, and records access, can be found here (http://www.dol.gov/ofccp/regs/compliance/vevraa.htm) and here (http://www.dol.gov/ofccp/regs/compliance/section503.htm).
Contractors with an Affirmative Action Plan already in place on the effective date of the regulations will have additional time, until they create their next plans, to bring their plan into compliance. However, whether they have a current Affirmative Action Plan or not, federal contractors should begin looking at these new rules now and take steps to ensure they are in compliance.