Orrick Speaks: Mike Delikat Talks with The New York Times About the Impact of the Affirmative Action Ruling on Corporate Recruitment and Hiring Practices

The New York Times spoke with employment law partner Mike Delikat about how the Supreme Court’s decision on affirmative action in college admissions may affect employers pursuing diversity in the workplace.

Mike said many companies may find themselves vulnerable over policies that comply with civil rights law on paper but violate it in practice. He cited the example of a company policy encouraging recruiters to seek a more diverse slate of candidates from which to make hiring decisions without regard to race. If recruiters carry out the policy in a way that effectively creates a racial quota and thereby excludes other qualified applicants, he said, that could lead to reverse discrimination claim.

“The devil is in the details,” he said. “Were they interpreting that to mean, ‘Come back with 25 percent of the internship class that has to be from an underrepresented group, and if not you get dinged as a bad recruiter’?”

The Supreme Court college admissions cases were largely silent on these employment-related questions, but Mike said he expects an increase in litigation, activist shareholder demands and regulatory scrutiny by Attorneys General in certain states  after the decision, and he encouraged companies to do a privileged legal review their diversity initiatives as written as well as to how they are applied.