The US Supreme Court’s ruling against affirmative action, or colleges’ and universities’ use of race as a factor in student admissions, may not have an immediate impact on employers, but it still raises concerns about long-term harmful consequences.

One worry is its affect on the talent pipeline.

“Today’s Supreme Court decision effectively turns away from decades of precedent and will undoubtedly hamper the efforts of some colleges and universities to ensure diverse student bodies,” said Charlotte Burrows, chair of the US Equal Employment Opportunity Commission, in a statement. “That’s a problem for our economy because businesses often rely on colleges and universities to provide a diverse pipeline of talent for recruitment and hiring. Diversity helps companies attract top talent, sparks innovation, improves employee satisfaction and enables companies to better serve their customers.”

While the ruling — the court issued an opinion on two companion cases — has no immediate direct legal impact on private employers at this time, it will likely put a bigger focus on diversity, equity and inclusion in the workplace, according to a post by employment law firm Seyfarth Shaw.

“Employers may need to spend time, effort, manpower and money addressing questions raised by the opinion,” according to Seyfarth Shaw’s post. “But employers need not abandon their ideals or principles, and they need not make hasty decisions that unravel their commitments to ensuring diverse, inclusive and belonging environments for all employees.’”

Loren Gesinsky, a partner with Seyfarth Shaw, noted the potential implications for employers in the post apply to staffing firms.

“What probably distinguishes staffing agencies as employers is the frequency and specificity of requests or demands from customers regarding the characteristics of who is staffed to them,” Gesinsky said in a statement to SIA. “To the extent any such customer request or demand could be deemed unlawful and the staffing agency complies, the staffing agency is at risk for liability.”

Under law long predating Thursday’s Supreme Court decision, making or denying staffing assignments based on race or another legally protected characteristic was virtually always unlawful, he said. But the court’s opinion and the publicity around it and related events make it more likely now that any such staffing decision will be challenged, even though the opinion does not rule on employment issues. 

It also now seems more important than ever that staffing firms educate their customers and insist that — absent exceptional circumstances such as prison guard staffing — any staffing requests or demands be unrelated to protected characteristics and instead framed in terms related directly to the qualifications and responsibilities called for by the position to be staffed. 

“If the staffing agency thinks circumstances warranting an exception to this rule may apply, it should check with counsel rather than relying on intuition in light of the risks now likely to receive greater attention because of [the opinion],” Gesinsky said.

Others raised concerns about the impact on the workplace as well.

“Today’s Supreme Court decisions on affirmative action will not only have a chilling effect on diversity in higher education. They will also undoubtedly have far-reaching implications for workplace DEI policies, which are essential for fostering positive work environments and driving organizational success,” Ken Oliver, VP of Checkr.org and executive director of the Checkr Foundation, said in a statement. Oliver is also a board member at DE&I staffing firm Turning Basin Labs.

Science and technology employment

Several large science and technology firms — including Microsoft Corp. and its employment-focused platform LinkedIn, as well as Shell USA Inc. and Verizon — had asked the court to uphold affirmative action in education in a brief filed prior to the Supreme Court’s decision, saying diversity was crucial for competition.

“A diverse pipeline of graduates in disciplines such as science, technology, engineering and mathematics is not only a worthy goal in itself, it is also essential to the success of science and technology companies,” the brief said.

“Racial and other diversity improves scientific endeavors and the innovation of new technologies. A racially diverse workforce also helps guard against the possibility that science and technology companies will be out of touch with their increasingly diverse and global customer base,” the brief said. “A diverse workforce likewise helps science and technology companies recruit the most talented people from a diverse range of backgrounds and ensure that those individuals work together inclusively.”

Impact on Healthcare

The opinion could also result in a less-diverse physician workforce, Dr. Jesse Ehrenfeld, president of the American Medical Association, said in a press release.

“This ruling restricts medical schools from considering race and ethnicity among the multiple factors in admissions policies and will translate into a less-diverse physician workforce,” Ehrenfeld said. “Diversity is vital to healthcare, and this court ruling deals a serious blow to our goal of increasing medical career opportunities for historically marginalized and minoritized people.”

The nursing profession could also see less diversity over time, according to the American Nurses Association.

“Inevitably this decision will impact the admissions process for schools of nursing, a necessary pipeline for diversity within the profession to provide culturally competent and equitable healthcare,” the ANA said in its statement. “…[This] ruling ignores the reality of inequality and discriminatory practices and policies.”

The Society for Human Resource Management said in a statement it has seen quantifiable mutual benefit to employers and employees through diversity. But the organization noted work must go on after the opinion.

“Whether or not one agrees with the ruling, we must all turn to the critical task of supporting higher education human resource professionals as they both comply with today’s ruling and develop innovative approaches to build better workplaces for an increasingly diverse workforce,” according to the statement.