Make That Two Fine Messes

// People way smarter than I will continue to dissect the Supreme Court’s Harvard/UNC affirmative action decision and figure out how to play the hand that has now been dealt. Hockey legend Wayne Gretzky’s words apply here: play to where the puck is going to be, not to where the puck has been.

With that admonition in mind, we knew — or should have known — where this affirmative action puck was going.

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So, where is the puck going to go? Where are we headed in the legal world on DEI initiatives? We have made progress, but there is still far to go. We (and I am using the editorial “we” here) have worked to get as far as we have (not very far at all if you look at the most recent stats about women equity partners and leaders as well as women GCs) to make the profession look more like the clients we represent, the world we live in today.

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A 2018 Associated Press survey noted disparities within our profession. Its analysis found that “in the legal field, the ratio of white workers to Black workers was seven to one. In management, the ratio was 10 to one.” Anyone surprised? What happens to the Mansfield Rule, where participating law firms and corporate legal departments have pledged to consider women and minority candidates?

What happens to the push for diversity within firm ranks? (And I am not talking just about associate ranks, but rather equity partner ranks, firm leadership ranks.) What happens to the push for diversity in corporate legal departments? (Again, I am not talking just about staff attorney positions, but about leadership positions as well.) Do these initiatives go forward from this point? If so, how? Will there be continued support for them? And if they continue, how much litigation is on the horizon? Full employment for employment lawyers? What happens now to judicial selections where the goal has been to diversify the bench and progress has been made?

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How to maintain a diversity pipeline without running afoul of the prohibition of affirmative action? How will law school admissions be impacted? If law firms and corporate legal departments are serious about DEI, would it be wise to start recruiting from other than the Tier 1 law schools? Would that give graduates from “lesser” schools opportunities that they haven’t had because elitism has ignored their value? What do you think? Granted, the case only discusses affirmative action in the context of college admissions, but you don’t need to be Evel Knievel to make the leap to the workplace.

What is hiring going to look like going forward? How will employers, law firms and legal departments try to continue to create diverse workforces? It wouldn’t be surprising to see more reverse discrimination claims and the disbanding of workplace affinity groups.

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Questions, questions, questions, and I have no answers, answers, answers. The only thing that I am sure of is that there will be more litigation, testing theories we thought were settled law.

One commentator in The Guardian noted that this case is just an “amuse bouche,” that the true target is racial equity in the workplace. Agreed, but I am not at all sure that the target will stop there. Religious and ethnic targets may well follow. We’ve seen this all before in law and society and, chillingly, it could be a playbook for the future.

And do you think that the court’s opinion in 303 Creative will end there? So, the website designer can legally discriminate against same-sex couples because she doesn’t want to serve gay people.

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How about some hypotheticals here? (Remember those from law school?) Could the holding in 303 Creative extend to website designers (and others) who don’t want to serve people celebrating a religious event, such as a bar or bat mitzvah or a confirmation? What about a refusal to design a website for a couple whose religious beliefs don’t align with the website designer? What if the couple wants a religious symbol on the website or a saying or two that clearly defines the religion of the couple? Go ahead and fill in whatever religion you want. What about interracial couples who want photos of the happy couple on the website? What if the website designer objects to interracial marriage on religious grounds?

I doubt that limiting the holding to same-sex couples will be the case for very long, given the apparent predilection of this court’s majority to turn back the judicial clock (and this country) to a time that comports with philosophies that we had thought we consigned to the “dustbin of history.” We may have left them behind, but the majority of this court has not.

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The Harvard/UNC opinion says that it’s wrong to discriminate based on race, which is an opinion that Chief Justice John Roberts has held for years. However, 303 Creative says it’s now OK to discriminate based on the free exercise of religion. So, ordinary citizens (e.g., not legal scholars) may well decide that while discriminating on the basis of race is not OK, it’s perfectly fine to discriminate while hiding behind the free exercise of religion clause of the First Amendment.

“Another fine mess,” Oliver Hardy’s purported catchphrase to Stan Laurel, applies to both decisions.

We’re not headed back to the future, but back to the past. Apologies to Michael J. Fox and Christopher Lloyd.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].

Topics

303 Creative LLC v. Elenis, Affirmative Action, Biglaw, Jill Switzer, Supreme Court