Sector News

Does the US Supreme Court decision on Affirmative Action affect your company’s diversity initiatives?

July 2, 2023
Diversity & Inclusion

Disclaimer: This blog post is not a substitute for professional legal advice. If you want guidance on what, if any, impact this ruling will have on your own organization’s specific DEI practices, please seek advice from your legal counsel.

In the aftermath of the US Supreme Court decision on race-conscious admissions in higher education, Catalyst is as committed as ever to diversity, equity, and inclusion in the workplace. We recommend that US-based companies continue to focus their DEI efforts on creating an environment where people of all identities and backgrounds can belong. On a practical level, how will this decision—which struck down the race-conscious admissions policies at Harvard and the University of North Carolina—influence the diversity initiatives of private companies?

Catalyst reached out to Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law and faculty director of NYU Law’s Meltzer Center for Diversity, Inclusion, and Belonging, and David Glasgow, Executive Director of the Meltzer Center, for their response to the decision and their thoughts for US-based companies.

What will the impact of this decision be on DEI initiatives in the workplace?

The main initial impact of this decision will be on the candidate pool. If the students admitted to colleges become less diverse overall, it follows that the graduate pool for entry-level jobs will also be less diverse.

However, the decision will have little immediate impact on the legality of workplace DEI initiatives themselves, for a few reasons.

For starters, the Court’s decision was about affirmative action in higher-education admissions, not affirmative action in private workplaces. While the Court held that affirmative action violates the Equal Protection Clause in the US Constitution (and, by extension, Title VI of the Civil Rights Act of 1964), it did not hold that affirmative action violates Title VII of the Civil Rights Act of 1964—the main statute governing the employment relationship. To end workplace affirmative action, the Court would need to overrule two of its longstanding precedents—United Steelworkers v. Weber(1979) and Johnson v. Transportation Agency (1987)—which authorized affirmative action under Title VII.

Second, most DEI initiatives in the workplace are not affirmative action in the sense addressed in this decision, because they do not involve employers taking race or other legally protected characteristics into account when making hiring or promotion decisions. Rather, they involve broader efforts to advance a more diverse and inclusive workplace, such as establishing employee resource groups, creating mentorship and sponsorship programs, conducting education and training, removing bias from internal procedures, and so on. This decision has no direct bearing on those activities.

Third, this decision relates to race, whereas DEI initiatives involve a range of classifications including gender, sexual orientation, disability, age, socioeconomic status, and more. This decision does not implicate DEI efforts in those other domains.

In the wake of this decision, what can US-based companies do to take race and ethnicity into account when making hiring and promotion decisions?

While the initial impact of this decision on workplace DEI is limited, we expect that the Court may use similar reasoning to outlaw affirmative action under Title VII in a future case. Accordingly, the safest course is to ensure that concrete employment decisions around hiring and promotion are based on identity-neutral merit considerations and do not involve consideration of characteristics protected by Title VII (race, color, religion, sex, and national origin).

Nonetheless, companies can advance racial diversity in hiring and promotions by:

  • Investing in pipeline programs to diversify the talent pool.
  • Conducting targeted outreach to diverse colleges to find more qualified applicants.
  • Auditing internal policies and procedures relating to recruitment, performance evaluation, compensation, and promotion to find and eliminate implicit bias.
  • Creating employee resource groups to build a more inclusive culture for underrepresented cohorts.
  • Conducting education and training on inclusive hiring and promotion practices.
  • Establishing mentorship and sponsorship programs.

Employers can adopt these programs (and more) while still ensuring that concrete employment decisions such as hiring and promotion are based on identity-neutral merit considerations.

What do US-based companies need to be careful to not do? For example, do they need to use different language and call “DEI” or “diversity” something else?

We think it is unnecessary to revamp the language in this field. Although the Court held that the universities’ interests in achieving a diverse student body did not justify a race-conscious admissions policy, companies are still allowed to strive for a diverse workforce. That being said, employers particularly nervous about the possible knock-on effects of this decision might consider making a few shifts in emphasis:

  • From cohorts to concerns: Expand programs targeted at particular demographic cohorts to include people of any identity who are concerned about that topic (e.g., opening a DEI initiative to people of any identity who care about DEI, not just underrepresented cohorts).
  • From diversity to debiasing: Deemphasize the goal of achieving specific demographic outcomes, and focus more on the goal of leveling the playing field by addressing unfair biases and barriers. Even a Court that embraces “colorblindness” cannot object to a program that seeks to remove bias from hiring and promotion decisions.
  • From numbers to narratives: Focus less on strict numerical metrics and targets, and more on inviting candidates to share hardships or other narrative aspects of their background.
  • From unique to universal: Focus less on unique programs aimed at addressing each demographic group’s concerns one by one, and lean into frameworks that emphasize that a culture of diversity, inclusion, and belonging benefits everyone, including members of majority or dominant groups.

To reiterate, we do not believe such shifts are essential at this time, but they are worth considering for companies worried that their existing programs might create unnecessary legal exposure.

What should US-based companies invested in creating a culture of diversity, equity, and inclusion keep in mind going forward?

First, keep calm. As noted above, this decision did not overturn decisions authorizing affirmative action in the workplace, nor did it outlaw the many forms of DEI that do not involve affirmative action.

Second, recognize that risks exist in both directions. Organizations tempted to retreat from their DEI commitments may reduce some legal risk associated with “reverse discrimination” claims, but they may create new risks to employee engagement and morale, reputation, as well as legal risks from the pro-DEI side. Specifically, supporters of DEI are starting to bring progressive shareholder suits against corporate directors and officers for making false statements about their commitments to diversity and inclusion. It is critical to maintain DEI initiatives; the key is to do so in a smart and responsible manner.

Third, conduct a self-audit of your current DEI initiatives. You might consider using a traffic-light system that codes programs as “red” (high risk), “yellow” (medium risk), and “green” (low risk). A “red” program could include, for example, a formal quota or set-aside that reserves hiring or promotion slots for underrepresented groups, or a policy that instructs managers to use race/ethnicity or sex as a “tiebreaker” in hiring and promotion decisions. A “yellow” program might include, for example, ambitious demographic targets (e.g. “X% Black leaders by 2030”) with manager performance evaluation and compensation incentives tied to meeting those benchmarks. Once you’ve audited your programs, you can speak with your legal counsel about how to mitigate risk in the red and yellow programs (perhaps through the shifts in emphasis described above). You can also then confidently defend the green programs whenever you encounter pushback within your organization.

Finally, equip yourself to make the affirmative case—both moral (“it’s the right thing to do”) and business-case (“diversity helps the bottom line”)—for DEI. The movement that brought this challenge to affirmative action in higher education is also attacking “critical race theory” in schools, DEI in the workplace, and other identity-conscious activities. While die-hard opponents of DEI are unlikely to be persuaded, we believe many individuals are in the “movable middle”—open to supporting DEI but at risk of being convinced by opponents that DEI initiatives are unfair or otherwise inappropriate. Remind yourself of both the moral and business reasons why DEI is so important, and be prepared to advocate for those values in internal and external conversations.


comments closed

Related News

October 1, 2023

Women in Life Science Denmark launches leadership drive

Diversity & Inclusion

Women in Life Science Denmark (WiLD) has announced the launch of its ‘Female Leadership Mentoring Program’ for women working in life sciences in Denmark – a year after it was founded. WiLD aims to inspire women in the Danish life science sector to reach for higher leadership roles by promoting female talent, through professional knowledge sharing and networking.

September 22, 2023

Why ‘Follow Your Passion’ can be perilous career advice for women leaders

Diversity & Inclusion

A 2023 study in the Journal of Personality and Social Psychology revealed that cultures where “follow your passion” is common career advice have greater gender disparities in academia and the workplace because women are more inclined to choose roles that align with traditionally feminine characteristics and interests.

September 15, 2023

Toxic workplaces drive out POC leaders faster

Diversity & Inclusion

Psychological safety at work? Depends on who you are and the environment your employer creates. Data from The Courage Collective suggests that on average, whereas 87% of White men feel safe voicing dissenting opinions at work, only 67% of Black women feel the same.

How can we help you?

We're easy to reach