Will the DOJ’s Affirmative Action Case Reach the Supreme Court?

At first glance, the U.S. Department of Justice’s lawsuit aimed at Minnesota laws and regulations that impose affirmative action obligations on state government agencies seems narrow in scope. But it may have wider implications, legal experts say.

“Public and private employers with similar affirmative action policies would be wise to prepare contingency plans” if the case reaches the U.S. Supreme Court and the court declares Minnesota’s program unlawful, said Zev Grumet-Morris, an attorney with Duane Morris in Chicago.

“Although DOJ is not targeting state contractor affirmative action, the logical extension of the lawsuit may impact those programs as well. As a result, state and local governments, their contractors, and even private employers should follow this case,” said Craig Leen, an attorney with K&L Gates in Washington, D.C. Supreme Court case law permits “certain voluntary affirmative action programs for private employers under limited circumstances that have now been called into question by DOJ,” he said.

It is too early to know whether the Supreme Court will hear the case, said Alissa Horvitz, an attorney with Roffman Horvitz in McLean, Va.

However, the DOJ may intend for the case to reach the high court, said Joanna Colosimo, SHRM-SCP, vice president, workforce analytics and compliance strategy, and principal consultant with DCI consulting Group in Washington, D.C. The department has certified the Minnesota case as one of general public importance, which positions it for direct, expedited appeal to the Supreme Court, she explained.

“There is a high likelihood this case reaches the Supreme Court because it involves a dispute between federal and state governments, and directly seeks to challenge two longstanding Supreme Court precedents in light of a more recent one that has received significant attention,” Leen said. 

The more recent one is a 2023 decision (Students for Fair Admissions v. Harvard) that effectively put an end to race as a consideration in college admissions, Grumet-Morris noted.

Related Article: Supreme Court Dismantles Affirmative Action in College Admissions

Challenged Provisions

Minnesota’s challenged provisions focus on state agencies, not state contractors, which have separate nondiscrimination and compliance requirements, Colosimo emphasized. 

Minnesota law requires state agencies to implement affirmative action plans in civil service employment, she said. Agencies must analyze workforce composition, identify underutilization of what the state defines as “protected groups”—including women, people with disabilities, and specified racial and ethnic groups—and establish hiring goals when underutilization exists. Agency heads establish timetables for meeting goals. 

The DOJ alleged that Minnesota’s system violates Title VII of the Civil Rights Act of 1964 by requiring race- and sex-based staffing decisions that allegedly disadvantage individuals outside of what Minnesota defines as a protected group, Colosimo said.

Toolkit: Managing Equal Employment Opportunity

“The complaint characterizes Minnesota’s framework as a workforce balancing structure where preferences given to protected groups necessarily disadvantage others,” she noted.

Horvitz said the DOJ is challenging Minnesota’s requirements that state agencies:

• Conduct an analysis that compares their current employment percentages of protected groups against availability percentages.
• Set numerical goals for protected groups if they are underutilized.
• Develop timetables to meet these goals.
• Provide justification for hiring any nonunderrepresented applicants in a job that has an affirmative action goal.

The DOJ alleged that Minnesota’s laws, regulations, and policies require agencies to balance the race and sex of their workforces with the relevant civilian labor markets, Horvitz said. In addition, the DOJ asserted that Minnesota had not identified any prior or present discrimination to justify its race- and sex-conscious policies, she added.

HR Fundamentals 

From an HR compliance perspective, Colosimo said the fundamentals remain: 

• Comply with Title VII and all applicable state nondiscrimination laws.
• Expect greater scrutiny of practices that explicitly consider protected-class status, even for inclusion and diversity (I&D) or remedial purposes.
• Avoid preferential treatment and monitor your workforce for compliance with Executive Order 14173, if applicable. Focus on examining policies, processes, validated selection tools, and consistent application of job-related criteria.
• Prepare for continued legal and political change. 
• Monitor state-level requirements, which remain enforceable unless superseded by litigation. 

“There are several states that have their own affirmative action requirements for government employers and private contractors with state agencies,” Grumet-Morris noted. Among them, Washington, like Minnesota, imposes obligations on state agencies to develop and maintain affirmative action plans to address workforce disparities, he said. “A favorable ruling for the government would deal a blow to these programs, even ones that enacted changes in response to and to comply with President Trump’s executive orders last January.”

HR should continue to act with extraordinary care in these areas, Leen said. “It is important to ensure that employment programs do not include preferences or exclusions based on race, sex, or other protected criteria,” Leen said. He recommended performing an audit of I&D programs to ensure they are compliant with federal anti-discrimination laws.