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The Future of Workplace Affirmative Action After Fisher

89 St. John's L. Rev. 597 (2015)

23 Pages Posted: 22 May 2017  

Rebecca K. Lee

Thomas Jefferson School of Law

Date Written: 2015

Abstract

The U.S. Supreme Court’s 2013 decision in Fisher v. University of Texas at Austin raises interesting questions about its relevance for employment discrimination law and what employers may be able to do to achieve employee diversity in the workplace. Although Fisher dealt with the constitutionality of an affirmative action program used in the university setting to promote student body diversity, Fisher’s analysis would further apply to race-conscious affirmative action efforts in the public sector workplace and also offers considerations for private sector employers to keep in mind when engaging in similar efforts. Fisher adds to the Supreme Court’s jurisprudence on higher education affirmative action and confirms that the Court’s earlier holdings in Regents of University of California v. Bakke, Grutter v. Bollinger, and Gratz v. Bollinger serve as good precedent. Thus it remains unchanged that a state university has a compelling interest in attaining a diverse student body for educational purposes that could make it constitutionally permissible under the Fourteenth Amendment’s Equal Protection Clause to use race as a factor in admissions decisions.

Fisher does not prohibit the use of race in affirmative action programs per se by public universities, and would not prohibit the use of race in affirmative action programs by public employers either. In clarifying the judiciary’s role in reviewing governmental decisionmaking involving race, Fisher closely examines the narrowly-tailored part of the strict scrutiny standard under the Equal Protection Clause. In providing this clarification, Fisher provides further guidance to public sector employers who engage in affirmative action initiatives—guidance that may also be applicable to private sector employers on this issue.

Keywords: employment discrimination, affirmative action, race, diversity, diverse student body, college admissions, work, workplace, public employers, private employers, equal protection clause

JEL Classification: D21, I24, J70, J71, J78, J79

Suggested Citation

Lee, Rebecca K., The Future of Workplace Affirmative Action After Fisher (2015). 89 St. John's L. Rev. 597 (2015). Available at SSRN: https://ssrn.com/abstract=2971618

Rebecca K. Lee (Contact Author)

Thomas Jefferson School of Law ( email )

1155 Island Avenue
San Diego, CA 92101
United States
619-961-4268 (Phone)

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