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The Latest Employment Law Updates: Affirmative Action, Religious Accommodations and Employee Protections

July 5, 2023

The week of June 25, 2023, was full of new information for employers. The Supreme Court of the United States addressed two important pending issues—affirmative action and religious accommodations—while the General Counsel to the National Labor Relations Board (“NLRB”) issued new guidance on protections for employees. Below is a brief summary of each, as well as considerations for employers.

Affirmative Action

On June 29, 2023, the Supreme Court issued a ruling that will prohibit higher education institutions from considering the race of an applicant when evaluating them throughout the admissions process. Specifically, the ruling in Students for Fair Admission v. Harvard and Students for Fair Admission v. University of North Carolina holds that the race-conscious admission process and policies of Harvard University and the University of North Carolina are unconstitutional because they violate the Equal Protection Clause of the Fourteenth Amendment. The decision overturns a 2003 Supreme Court case, Grutter v. Bollinger, that justified the use of race in university admissions on the basis that “student body diversity is a compelling state interest.” Therefore, this ruling ends affirmative action as we currently know it in the higher education system within the United States.

Although this ruling was specific to institutions of higher education, it is anticipated the decision will have broad implications for employers as well. Potential considerations for employers include complications for companies with federal contracts that are subject to special affirmative action requirements by the government, the potential for an increase in reverse discrimination cases brought against employers, the legality of certain diversity, equity and inclusion programs and the disruption in the flow of racially diverse applicants from diverse universities to the workplace.

Religious Accommodations

On June 29, 2023, the Supreme Court also issued a decision in Groff v. DeJoy, a case where a former USPS employee, an Evangelical Christian, sued USPS on the basis of religious discrimination.

Title VII requires that employers denying requests for religious accommodation show that the accommodation would result in undue hardship to business operations. Courts had previously applied a standard that anything more than a de minimis cost to an employer met the burden to show an undue hardship. However, in the Groff decision, the Supreme Court has made clear that a de minimis cost standard does not satisfy the Title VII test. Rather, in this unanimous decision, the Supreme Court explained that in order to deny a request for religious accommodation under Title VII, the employer must show that the accommodation would result in substantial increased costs in relation to conducting business.

Here, the former employee expressed to USPS that he believes Sunday is a day for rest and religious worship, not for secular work and delivering worldly goods. He took the delivery position when Sunday deliveries were not generally required and before USPS entered a contract with Amazon that required Sunday deliveries. Because he was unwilling to work on Sundays, USPS made other arrangements and redistributed those shifts to other employees when it could. However, he continued to receive progressive discipline for failing to work Sundays. He eventually quit his position and brought this lawsuit. Notably, the Court did not make a decision as to whether the employee would prevail in this case, it only clarified the standard courts (and employers) should be applying. In light of this decision, employers should take time to review, and possibly revise, handbooks, policies and procedures regarding religious accommodations.

Workplace Protections for Conversations About Racism

Concluding this busy week, the NLRB General Counsel, Jennifer Abruzzo, published an advice memorandum on Friday, June 30, 2023, regarding workplace discussions of racism. In short, the GC’s memo explains that workplace conversations around racism are inherently protected by the National Labor Relations Act (“NLRA”), noting that other NLRB case law addresses social justice issues.

In particular, the case that prompted this memo involved Home Depot’s dress code policy, which prohibited employees from wearing political messaging. Specifically, the dress code was applied to prohibit an employee from wearing a Black Lives Matter slogan on his work apron. The memo notes the definition of protected concerted activity should include wearing buttons or pins. The GC also argued in favor of returning to the NLRB’s prior approach requiring rescission of rules that have been unlawfully applied so as to restrict rights under Section 7 of the NLRA.

While the GC’s memo is not case law or binding, employers should take note since the GC will be focused on enforcement in similar cases.

Please contact your Varnum attorney if you have any questions.

2023 summer associate Cole Anderson contributed to this advisory. Cole is currently a student at Wayne State University Law School.

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