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Supreme Court Reiterates High Affirmative Action Standards

July 2013

By: Phoebe A. Taurick, Esq.

In Fisher v. University of Texas at Austin, the Supreme Court again took on the issue of a university's use of affirmative action in its admission policies after a Caucasian applicant, Abigail Fisher, claimed she was denied admission into the University of Texas at Austin over less qualified minority candidates.

In the interest of creating a diverse student body the University of Texas at Austin adopted a system that considers race as one of a number of factors as part of its undergraduate admissions process. The practice has been upheld by prior Supreme Court rulings that stated such admission policies may be acceptable under certain circumstances.

In this case, the Supreme Court stated that although it had previously held racial diversity in higher education was compelling, the lower courts failed to look closely enough at the University's policies to determine if it was the least restrictive way to achieve a diverse student body. Because the lower courts did not properly address this issue, the Supreme Court directed it to more closely reexamine the matter.

Although this case took place in the context of a University, it has implications for employers. This decision reminds employers that the goal of achieving diversity in the workforce, regardless of whether an employer has affirmative action obligations under federal, state and local law, is legitimate and commendable. However, employers need to be mindful of how it attempts to achieve this goal. Issues such as reverse discrimination and failure to choose the most qualified candidate can arise and attempting to justify hiring decisions solely on the basis of a desire to create a racially diverse workforce is not sufficient. In a nutshell, the need for diversity does not override the need to have hiring procedures that apply equally and fairly to all applicants regardless of race or any other protected class.

If you have questions or concerns regarding uniform hiring policies and how to best create and implement such policies do not hesitate to contact the experienced and knowledgeable attorneys at Wessels Sherman for guidance.