The Justice Department’s test case to dismantle Minnesota’s affirmative action program turns on the viability of the US Supreme Court’s nearly 50-year-old precedent supporting narrowly-tailored efforts to repair documented workplace discrimination.
The DOJ outlined its legal and policy justifications in a lawsuit to block the state program, saying its consideration of gender, race, ethnicity, and other protected classes for civil service employment and other personnel decisions violates Title VII of the 1964 Civil Rights Act.
Minnesota’s mandate, similar to those in other states, builds on the Supreme Court’s 1979 Steelworkers v. Weber and 1987 Johnson v. Transportation Agency rulings that allow affirmative action plans in narrow circumstances to address race or sex imbalances in historically segregated jobs. The DOJ argues these holdings are “outdated,” and that such plans conflict with Title VII’s nondiscrimination requirements and the Supreme Court’s 2023 decision prohibiting race-conscious college admissions policies.
The legal battle represents “an extension” of the administration’s broader anti-bias enforcement priorities related to diversity, equity, and inclusion practices, said George Ingham, a partner at Hogan Lovells. Last year, President
The government has since shifted its focus to states and localities’ hiring programs and their expectations for private sector companies they do business with, he said.
A DOJ victory would give the administration and private litigants legal ammunition to challenge other state programs that require agencies and contractors to implement similar affirmative action practices, said Tony Torain, a partner at McDermott Will & Emery LLP. State business initiatives, for example, that prioritize suppliers from historically underrepresented groups in a company’s supply chain to boost economic opportunities may become even more vulnerable to legal challenges, he said.
Remedial affirmative action plans are less common in the private sector than in previous years, and “employers are being more cautious about them because of increased scrutiny,” especially after the Supreme Court’s Students for Fair Admissions v. Harvard decision, Torain said.
These plans differ from traditional initiatives like mentor programs and targeted recruitment efforts, designed to attract and retain a diverse workforce. Conservatives have long argued that workplace DEI efforts increase the representation of women and racial minorities at the expense of White, heterosexual men.
Expedited Legal Path
The DOJ certified the case as one of “general public importance,” a Title VII designation that allows the US Attorney General to request a three-judge panel to adjudicate the litigation. This puts the case on a potential fast-track for high court review, because the panel’s final judgment can be appealed directly to the Supreme Court.
To be lawful, a plan must be temporary, aim to eliminate racial or sex imbalances in segregated job categories, advance Title VII’s goal of addressing historic workplace discrimination, and not affect the rights or advancement of other workers.
In its complaint filed Jan. 14, the DOJ argued that Minnesota relies on disparity studies and periodic reviews to justify its approach. The state’s plan also isn’t temporary and doesn’t identify any prior or current discrimination to support its policies, the suit added.
To minimize conflict with Trump’s EO, Minnesota last year changed contractor compliance rules. It removed the need to set placement goals for underrepresented groups, but still requires the analysis.
The state’s attorney general’s office didn’t immediately respond to a request for comment on the suit.
While the Supreme Court’s college affirmative action ban wasn’t decided under workplace anti-bias laws, the DOJ cited it as persuasive legal authority, suggesting that a majority of current justices are skeptical of considering race in similar affirmative action efforts, regardless of remedial effect or intent.
Lower courts typically uphold Supreme Court precedent, “so the only way the DOJ prevails is if the” panel rules “that Minnesota’s affirmative-action program is unlawful under those precedents,” or if the justices overturn them, said Michael J. Yelnosky, an employment law professor at Roger Williams University.
If that happens, “the employment rates for women and racial minorities in the public sector to decline, and in some markets, decline dramatically,” he said.
But Alison Somin, a senior legal fellow at the conservative Pacific Legal Foundation, said the DOJ may have valid reasons to sue.
“If Minnesota is putting a thumb on the scale based on race or sex in hiring, that is a very serious matter raising significant legal concerns,” she said. “The DOJ would be correct to act to ensure that job applicants are treated fairly in line with the law.”
“The Constitution enshrines this important principle into law by generally prohibiting government from race and sex discrimination subject to a few narrowly drawn exceptions,” Somin added.
Bostock Cited
The DOJ’s liability theory against affirmative action plans also rests on the Supreme Court’s 2020 Bostock v. Clayton County decision, which holds that Title VII prohibits sexual orientation and gender identity discrimination.
This landmark expansion of LGBTQ+ workers’ civil rights protections was based on the majority’s analysis of Title VII’s plain meaning. “Only the written word is the law, and all persons are entitled to its benefit,” said the opinion, which the DOJ also cited.
The agency’s reliance on Bostock’s mechanics comes as the administration is rolling back regulatory and enforcement protections for transgender workers that stem from the decision. These include Biden-era anti-harassment guidance stating that intentionally misgendering a worker is a form of discrimination under Title VII, a view some federal courts—including the conservative US Court of Appeals for the Eleventh Circuit—have endorsed.
“The holding in Bostock and the substantive result of it were not something the administration is necessarily pushing to expand,” Ingham said.
But with the rationale of Justice Neil Gorsuch, who authored the majority’s opinion and also concurred in the college admissions case, “I think the DOJ may be looking to speak” the court’s language in an era where a law’s text matters, rather than its purpose or intent, Ingham said.
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