Since 2020, many corporations have invested more heavily in diversity, equity, and inclusion (DEI) programs in the workplace. Tragic racial events including the death of George Floyd spurred this increase. But at the same time, workplace diversity programs have been touted to enhance business performance as well. As a result, this seemed like a win-win for all. But in light of the Supreme Court’s recent ruling on Affirmative Action in education, some companies may be reconsidering their position. Pursuing Affirmative Action in the workplace could expose businesses to legal woes given the recent court decision. As a result, corporations will need to reassess their position as it pertains to DEI policies and programs.
The biggest issues facing corporations in terms of workplace diversity programs will be their inherent approach. In the case of college practices, the Court found that universities using race as a basis for admission was discriminatory. Even those that didn’t define race quotas but admitted being racially conscious were found to be at fault. But whether this pertains to Affirmative Action in the workplace isn’t quite clear. Some suggest the ruling will indeed have an impact on workplace policies. Others, however, believe the effect will be minimal at best. Ultimately, it all depends on the specific strategy corporations take when it comes to DEI pursuits. For these reasons, businesses should reexamine not only their intentions but their actions as well in terms of Affirmative Action.
“What seems to bother the court is that the admissions programs at issue treated race as a plus without regard to the individual student. [But] employment decisions are more often individualized decisions.” – Pauline Kim, Professor of Employment Law, Washington University in St. Louis
An Overview of the Court’s Ruling on Affirmative Action
In the recent Supreme Court case, discrimination claims had been brought against Harvard University and the University of North Carolina. In essence, their Affirmative Action policies didn’t set racial quotas for student groups. However, it did make racially conscious decisions that awarded some racial minority an advantage over others. In the process, these policies undermined meritocracy and resulted in reverse discrimination according to the 6-3 majority. Thus, the final ruling determined that Affirmative Action in education was discriminatory and should no longer be practiced. The immediate question that has since followed asks whether this also applies to Affirmative Action in the workplace.
In response to this question, it must be noted that Affirmative Action in the workplace differs from that used in school admissions. When it comes to hiring and promotion, corporations are governed by state and federal civil rights laws. In this regard, these types of decisions cannot be determined based on race or gender. Instead, they must pertain to individual skills, abilities, and experiences. But what’s seems to be a bigger issue relevant to the Court’s ruling is how this might impact workplace diversity programs. Depending on how these programs are designed, racially discriminatory practices might exist. This is why legal experts are encouraging companies to revisit these types of programs in an effort to reduce legal risks.
“I do worry about corporate counsels who see their main job as keeping organizations from getting sued — I do worry about hyper-compliance.” – Alvin B. Tillery Jr., Director of the Center for the Study of Diversity and Democracy, Northwestern University
Workplace Diversity Programs and Legal Risks
When it comes to Affirmative Action in the workplace, the approach is notably much different than in academic settings. Hiring and promotion decisions tend to be assessed based on individual merits more than other factors. Generally speaking, companies do not attempt to meet racial quotas or offer advantage to select underprivileged groups. However, workplace diversity programs do attempt to expand potential employee markets based on diversity. In this regard, workplace diversity programs are well aligned with civil rights laws, which support these types of actions. Likewise, these same laws also align well with diversity training programs that teach about implicit biases that relate to race. From this perspective, the recent Supreme Court ruling is not likely to affect corporate diversity, equity, and inclusion initiatives.
This does not mean that all workplace diversity programs are immune to recent judicial trends. There are some activities involving Affirmative Action in the workplace that could come under increased scrutiny. Specifically, some leadership acceleration programs that only cater to minority groups could be subject to judicial review. Similarly, some company internships that only include minority and underprivileged groups may also be at risk. And of course, companies that actually do have specific diversity quota mandates will be vulnerable to the new court ruling. These are the areas where companies should revisit their existing DEI programs to reduce potential legal exposures.
“It is lawful for employers to affirmatively recruit people so that they have the widest range of applicants and pick the most talented candidates. I don’t think that will change.” – Amalea Smirniotopoulos, Senior Policy Counsel at NAACP Legal Defense and Educational Fund
Staying True to the Mission
While the recent Supreme Court decision does address reverse discrimination, it doesn’t suggest diversity isn’t important. For companies, workplace diversity programs remain important from the standpoint of success. For example, corporations with workplace diversity programs enjoy retention rates 5.4 times higher for underrepresented groups. Likewise, diversity invites greater inclusivity in terms of product and service designs. This means Affirmative Action in the workplace also broadens consumer outreach. Therefore, the court ruling regarding schools and Affirmative Action should not deter businesses in their DEI efforts.
Despite these statistics, it’s likely some companies will choose to be less assertive in their workplace diversity programs. Anticipating legal challenges, these companies may fear their programs involving Affirmative Action in the workplace excessively expose them. But by the numbers, this is highly unlikely. The number of discrimination cases brought against companies by non-minority employees in 2021 totaled around 2,350. In contrast, those involving minority groups exceeded 21,000. Thus, even with the recent ruling, the risks companies face for a lack of diversity efforts are much greater. For these reasons, companies should stay true to the mission and continue in their DEI efforts in an authentic manner. It’s not diversity that’s the issue…it’s the way by which it is pursued that requires ongoing attention.