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How to Support DE&I After the Affirmative Action Ruling

Published 7 months ago • 5 min read

Last month, the Supreme Court effectively ended affirmative action programs in college admissions, declaring that such programs violate the Equal Protection Clause of the Constitution. This will undoubtedly hinder the efforts of academic institutions seeking to achieve more diverse student bodies. However, the ruling will also trickle into the workplace and is likely to have significant repercussions on how businesses approach their DE&I efforts.

With fewer underrepresented minorities entering the educational system, one outcome will be a less diverse talent pipeline. Certain U.S. sectors may be hit especially hard; for example, it could set back years of progress in the IT / technology sector, where Black employees account for only 8% of the workforce. Progress is also likely to stall in the legal and medical fields, where only 5% of lawyers and 5.7% of doctors are Black.

Another outcome is that DE&I programs, particularly those focused on diverse hiring practices, will be at greater risk for legal action. Although the Court did not touch its long-standing precedent allowing workplace affirmative action plans, Justice Neil Gorsuch noted that Title VI (which applies to higher education) sits “just next door” to Title VII (which applies to employers) and contains "essentially identical terms."

This means that anyone using race as a factor in workplace decision-making could face legal challenges. In fact, almost immediately after the ruling, 13 Republican state attorneys general sent letters to the CEOs of the 100 biggest U.S. companies, cautioning them about the legal consequences for using race as a factor in their hiring and employment practices.

There’s also the unfortunate reality that some companies may use the Court’s decision to justify downsizing their DE&I programs, a trend that’s already been underway for some time. A March SHRM article notes that Amazon, Twitter and Nike have eliminated between 5 and 16 DE&I professionals each. Some DE&I departments have folded altogether due to budget cuts and layoffs.

Similarly, a new report by LinkedIn looked at more than 500,000 C-suite hirings between 2019 and 2022, and found that the hiring of chief diversity officers (CDOs) declined in 2022. This was after experiencing significant growth in 2020 and 2021, and notably, CDOs were the only C-suite position to experience these declines.

While the prospect of legal action is concerning, I’d caution employers not to scale back their DE&I efforts. A large body of research supports the fact that diversity can improve numerous business outcomes. For example, diverse teams generate higher revenues, are more creative and innovative, and are better able to support diverse customer bases.

Rather than abandon their DE&I efforts, organizations should keep in mind that these programs encompass much more than just hiring practices, and they should embrace the opportunity to communicate their stance around this important issue. While this may take some companies outside of their comfort zone — according to isolved, only 42% of employers have taken a public stand on political and social issues — it’s in companies’ best interests to stay the course on DE&I.

In today’s article, I’ll discuss how organizations should adapt in the wake of the SCOTUS decision. Although businesses may want to review their DE&I programs for compliance, leaders can find other ways to ensure a diverse talent pipeline, and they should remain focused on creating an inclusive, bias-free experience for their workforce. Let’s take a look.

If you’re concerned about legal exposure, review your most aggressive DE&I programs

Even before the Court’s ruling, many employers had already moved away from hiring plans that involved racial quotas. As Harvard Business Review notes, reserving hiring or promotion slots for underrepresented groups, instructing managers to use race or sex as a “tiebreaker” when choosing between candidates, or setting strict demographic targets tied to manager compensation could all be vulnerable to legal action.

It’s true that the new ruling might endanger more aggressive pro-diversity policies. Catalyst suggests a self-audit of your DE&I initiatives to determine whether any might put your company at-risk for legal action. Fisher Phillips adds that companies should also be aware of state and local laws. Florida’s Individual Freedom Act, for example, sets parameters on workplace diversity training programs discussing race, gender, and discrimination.

Bolster your efforts to attract diverse talent and invest in pipeline programs

Outside of race-based hiring practices, there are numerous other ways to ensure a diverse pipeline for your organization. For example, consider conducting targeted outreach to diverse colleges. You could also partner with local organizations or industry groups that support underrepresented communities. Or consider establishing mentorship and sponsorship programs that target diverse talent.

Although you may consider moving away from strict numerical quotas, it will still be important to understand your diversity metrics and where your company stands in comparison to similar organizations. To monitor this, I’d highly recommend using a well-designed workforce analytics tool such as isolved Benchmark Insights. Their solution offers position-specific industry averages for salary, tenure and turnover, and it can incorporate race, gender, and other factors.

Stay the course on DE&I initiatives that aim to eliminate bias and support underrepresented employee groups

There’s a lot that companies can do to level the playing field by addressing unfair biases and barriers. As Catalyst aptly noted, even a Court that embraces “colorblindness” cannot object to a program that seeks to remove bias from hiring and promotion decisions. With that in mind, consider ramping up your training on cultural competency and implicit bias, as well as programs that prevent discrimination, harassment, or retaliation.

You’ll also be more likely to attract and retain diverse talent if you take steps to create a welcoming and inclusive work environment. One way to achieve this is by providing Employee Resource Groups (ERGs), which are groups of workers with shared characteristics or life experiences who voluntarily come together to support one another. According to data from isolved, 59% of employers already offer this type of resource to their workforce.

Consider eliminating degree requirements and adopting a skills-based hiring approach

Leaders who want to further their DE&I efforts in the wake of the Court’s decision should consider whether degree requirements are justified for certain job roles. One report found that degree requirements locked out nearly two-thirds of U.S. workers from millions of jobs that didn't actually necessitate a college education. Companies including IBM, Dell, Bank of America, and Google have already begun waiving or reducing the use of educational criteria.

With the Affirmative Action ruling likely to decrease the number of minorities who hold degrees, a skills-based hiring approach may be the best path forward. This approach opens the door for job candidates who don’t have a degree, but are just as qualified because they’ve taken the initiative to develop their skills or gain on-the-job experience. Not only does this support corporate DE&I efforts, but it can also help organizations address critical talent shortages.

Navigating a new path for corporate DE&I

The Supreme Court’s decision will have ripple effects on the world of work, and it’s true that some companies may see this as an opportunity to deprioritize their DE&I programs. However, forward-thinking organizations know that having a diverse and inclusive workplace can unlock better outcomes for their business, their employees, and their customers. By taking some of the steps I’ve outlined in today’s article, I’m sure your business will be able to navigate these challenging times and continue to support DE&I while still remaining compliant.

Thanks for reading — be sure to join the conversation on LinkedIn and let me know your thoughts on today’s article!

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