Diversity & Affirmative Action
Affirmative Action and Gay Rights Are Alive and Well in the Workplace
The U.S. Supreme Court ended its 2002-2003 term with its much-anticipated decisions on affirmative action and gay rights. In both areas, the Court surprised observers with the breadth of its rulings.
In Grutter v. Bollinger, the Court held that the University of Michigan Law School admissions policy, which seeks to enroll a "critical mass" of students from underrepresented minority groups, was constitutionally permissible because the law school has "a compelling interest in attaining a diverse student body" in order to further its educational mission. In Gratz v. Bollinger, the Court found that the same university's undergraduate admissions policy, which automatically awards minority applicants 20 points (on a 150-point admissions scale) is too "mechanical" a process that does not provide "individualized consideration ??[and]?? has the effect of making [race] decisive," thus violating the Equal Protection Clause of the Constitution. Although the university in Grutter was found to have "a compelling interest in attaining a diverse student body," a majority of the Court in Gratz found that the university's admission guidelines were not sufficiently "narrowly tailored" to achieving that interest.
In Lawrence v. Texas, the Court struck down a Texas anti-sodomy law, which criminalized sexual relations between individuals of the same sex, on the grounds that it violated the equal protection, liberty and privacy rights of homosexual persons. In so doing, the Court overruled its 1986 decision in Bowers v. Hardwick decision in which the Court had upheld a similar anti-sodomy law in Georgia. In my opinion, these cases could have a profound impact on the workplace.
Supreme Court Maintains the Status Quo on Affirmative Action
In agreeing with the affirmative action goals of Michigan's Law School, the Supreme Court, in its first significant ruling on affirmative action since its 1978 decision in Regents of Univ. of Cal. v. Bakke, finally endorsed the principles underlying diversity in the classroom, and, by extension, in the workplace.
To buttress the arguments of the University, an impressive array of interested parties, ranging from educational organizations, to members of Congress, Fortune 100 companies, unions, and retired military officers, filed legal briefs supporting the University's position. More than 60 "friend of the court" or "amicus" briefs, were filed in conjunction with the two cases. Some of their arguments clearly resonated with Justice Sandra Day O'Connor, who authored the majority opinion in Grutter.
At one point in her opinion, Justice O'Connor stated that the University's claim of a compelling interest in a diverse student body was bolstered by the amicus briefs, citing arguments made by the American Educational Research Association, 3M, General Motors and by retired military officers and civilian leaders. She went on to say that the benefits which flow from a diverse student body are not theoretical but real, as major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.
Justice O'Connor also noted that diversity in the classroom was required to "cultivate a set of leaders with legitimacy in the eyes of the citizenry... [such] that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity."
Although it has taken the Supreme Court until now to acknowledge the inherent value of diversity in our society, corporate America has not been as slow to embrace these principles. As the amicus briefs cited by Justice O'Connor reflect, a diverse workforce has been viewed as a strength for some time. Moreover, employers are selecting employees from an increasingly diverse labor pool. According to U.S. Census Bureau statistics from March of 2002, 71.4% of the labor force was white (excludes persons of Hispanic origin), 11.4% was African-American, and 17% was "other" (i.e., Hispanic, Asian). According to the Bureau's statistics, the number of white individuals in the workforce has slowly, but steadily, decreased in recent years at the same time the number of employees in the "other" category has increased. The number of African-American workers in the labor force has remained relatively consistent. Labor force statistics from 1997, for example, show the following racial composition: 76% white, 11% African-American, and 14% "other."
Whether it is training our next corporate executives, military officers, or governmental leaders, as Justice O'Connor noted, we will need a diverse pool from which to select these individuals so that we will be prepared to respond to the global economy. "Effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one Nation, indivisible, is to be realized," she wrote.
While it is Justice O'Connor's hope that 25 years from now the use of racial preferences will not be necessary, it is safe to say that the Court will uphold properly crafted affirmative action programs.
The critical issue employers will face in adopting formal voluntary affirmative action programs, or engaging in various diversity initiatives for certain protected groups (such as minorities or women), is whether the program will be viewed as one where race or sex is one of many factors being considered by an employer in making selection and other personnel decisions (i.e., a "plus" factor) and thus legal, or whether it will be viewed as the sole or predominant factor and thus illegal.
Gay Rights Initiatives Gaining Acceptance in the Workplace & State Legislatures
As the Supreme Court has now given legitimacy to affirmative action, so too has it given legitimacy to the notion that homosexual individuals have rights under the U.S. Constitution. Many have argued that the Supreme Court, in its sweeping decision, did more than strike down the fourteen remaining state anti-sodomy laws. While the three dissenting Justices were quick to attack the ruling as "the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda ??directed at eliminating the moral opprobrium that has traditionally been attached to homosexual conduct," the majority, in a decision written by Justice Kennedy, may have been influenced by the sea change in recent years in the area of gay rights - both in the political and corporate arenas.
As one law professor noted of the affirmative action and sodomy rulings, the Supreme Court "addressed a rather new but widely supported cultural development and gave it constitutional legitimacy." While the Supreme Court may have been playing catch-up regarding these matters, it still played a significant role in acknowledging these cultural developments and translating them into "binding legal principle(s)."
What makes the Lawrence decision about more than the constitutionality of a state criminal statute is the manner in which Justice Kennedy chose to strike down the Georgia law. While Justice Kennedy could have struck down the law on equal protection grounds (as Justice O'Connor did in a concurring opinion), he went further and found that gay individuals have a liberty interest:
The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the due process clause gives them the full right to engage in their conduct without intervention of the government.
Some commentators have suggested that Lawrence may lead to the legalization of gay marriages or give a boost to federal legislation that has been pending that would amend Title VII to include sexual orientation as a protected class.
Although there is no legislation protecting gay workers on the federal level, several states have passed legislation that protects gay workers in the private and/or public sectors. Currently, thirteen states, plus the District of Columbia, have legislation that protects workers from discrimination based on their sexual orientation and/or gender identification. In addition, 119 cities and 23 counties have adopted policies that protect gay workers.
Passage of such laws or regulations has not been confined to state and local governments. Currently, 64% (318) of the Fortune 500 companies have adopted policies that protect gay workers. This figure is up 3% from the end of last year, according an annual report issued by the Human Rights Campaign Foundation. Only 51% of these companies had adopted such policies back in 1999.
It is often front-page news when a Fortune 500 company agrees or refuses to extend workplace protection for gay workers. Just days after the Supreme Court handed down its decision in Lawrence, Wal-Mart Stores Inc., the country's largest private employer, agreed to expand its anti-discrimination rules to protect gay workers. Wal-Mart may have been persuaded by several investors who, since August 2001, have actively sought changes in the company's treatment of gay workers. While acknowledging its dialogue with these investors, Wal-Mart credited employee input as the big factor in its decision to amend its anti-discrimination policy.
While anti-discrimination policies cost a company little or no money to implement, policies that extend benefits to domestic partners do involve an expenditure of funds. In recent years, the number of companies that have agreed to extend benefits to domestic partners has grown quickly. Although the number of companies that offer benefits to domestic partners is not nearly as large as the number of companies who have anti-discrimination policies protecting gay workers, the numbers are impressive.
Currently, according to the Human Rights Campaign Foundation, 40% (198) of the Fortune 500 companies offer (or will offer starting in 2004) domestic partner health benefits. This number represents less than half of the 500 largest companies, but the trend is towards adding these benefits. More than 50% (104) of the companies that currently (or will) offer these benefits have added them since the beginning of 2000. In addition, ten states currently offer domestic partner benefits to their employees. Iowa and New Mexico joined the ranks of states offering domestic partner benefits this year.
These decisions do bode well for future support of affirmative action and gay rights in the workplace. As I have mentioned in earlier articles, our legal system is based on "elucidating litigation" and these cases are prime examples of that phenomenon.
Article by Michael R. Brown, Partner, Seyfarth Shaw, LLP from https://www.nehra.com/articlesresources/article.cfm?id=478