Employment & Labor Insider

Since the beginning of the Trump Administration, business owners, employers, and employees alike have been waiting to see what the effects on social policy will be. Of particular interest to employers, and especially federal contractors, is whether the Administration will bring about a more conservative approach to enforcement in the employment arena, including equal employment opportunity and affirmative action.

We are now eight months in, and so far the employment law changes have come in a slow trickle, if at all. Meanwhile, it is often helpful to look for signals outside the employment arena.

One such area to watch right now is the U.S. Department of Justice and affirmative action programs in colleges and universities.

Last week, The New York Times reported that the Department of Justice was investigating claims of discrimination against Caucasians in the admissions process at Harvard University. According to the article, this was the first of many investigations to come for colleges and universities as the DOJ shifts its focus to affirmative action in the admissions process. The next day, the Times corrected itself and clarified that the investigation will focus on discrimination against Asian-Americans.

The investigation is being conducted in response to a complaint against Harvard, alleging that its admissions policy and practices have created what has amounted to an illegal quota system. Over the years at Harvard, the percentage of African-American, Hispanic, and Asian-American admissions has stayed the same, even though application rates and qualifications of the applicants have varied. Harvard, much like many other colleges and universities across the United States, allows race and ethnicity to be a factor in admission, often referred to as "race-conscious admissions." The goal of race-conscious admissions is to create a diverse student body, but it means that some superior applicants may be denied admission based on race or ethnicity.

There have been many challenges to the race-conscious admission approach over the years, but the Supreme Court has repeatedly upheld the process as constitutional. The Court has held that as long as race is only one of many factors considered, the school has a compelling interest in class diversity, and the approach does not amount to a quota system, then it is permissible.

The original Times article created an uproar from many civil rights activists because it seemed to signal that Attorney General Jeff Sessions was implementing a plan to dial back civil rights protections. Many civil rights groups considered it an “attack on affirmative action.” Could this be a window into policy changes that may be coming from the Office of Federal Contract Compliance Programs and the Equal Employment Opportunity Commission?

After publication of the article, however, the DOJ issued a statement saying that it was not going to be targeting colleges and universities. The DOJ said that there was no policy shift but that they were following up on an isolated complaint from 2015. The 2015 complaint alleged discrimination against Asian-Americans in the admissions process.

Is this a sign of things to come for employers, and especially, federal contractors? We'll see.