Now that the supreme court has declared affirmative action policies in college and university admissions unconstitutional, questions are arising over whether the court’s decision will affect diversity efforts in the workplace.
Diversity, equity and inclusion (DEI) initiatives have long been taken on by companies trying to diversify their employees and leaders, and after the racial reckoning following the police killing of George Floyd in 2020, many more businesses promised to prioritize diversity initiatives in hiring and retention. Even Chick-fil-A, a company long thought of as conservative for its stance on LGBTQ issues, voiced a commitment to diversity and created a new vice-president role for DEI.
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But experts who work and study workplace DEI efforts are worried about what the court’s decision on affirmative action will mean for these initiatives as conservative groups take their fight against diversity efforts even further.
“The entire point of these dark-money funded, rightwing groups that have been pushing these cases is that they want to eliminate the use of race in institutional decision-making,” said Alvin Tillery, professor of political science and director of the Center for the Study of Diversity and Democracy at Northwestern University, who also runs the consulting firm 2040 Strategy Group. Affirmative action in higher education “is not really the main event for racial equity in America. The main event is the workplace … This is what the rightwingers will attack next, and the economic and societal ramifications of that will be much larger.”
The US has long seen a large racial income gap, with a nearly $20,000 difference in annual income between Black and white households. Many factors go into this, including pay disparity, but part of the issue is that Black Americans are severely underrepresented in high-paying jobs. A 2018 analysis by the Associated Press found that in the legal field, the ratio of white workers to Black workers was seven to one. In management, the ratio was 10 to one.
Recent diversity efforts have made some strides in the workplace, including at the top of the leadership hierarchy. But stark disparities remain. Earlier in June, Fortune Magazine reported a new record for Fortune 500 companies: eight Black CEOs on the list.
And some are worried about the impact the end of affirmative action will have on the pool of applicants that companies look at when hiring.
“When it comes to diversity, both within the organizations but also at the leadership level, the needle hasn’t moved significantly,” said Tim Bartl, president and CEO of the HR Policy Association, a group of senior human resources executives at major US companies. “Including race as one factor, among many, is a way to ensure that you get talented, qualified students from leading universities and make them available for the workplace.”
The US supreme court struck down affirmative action in higher education but employment discrimination is covered by a different section of the Civil Rights Act. Photograph: Shawn Thew/EPA
HR Policy Association was one of dozens of groups and employers, including major companies like IBM and Meta and organizations like the American Bar Association, who wrote amicus briefs to the supreme court in support of affirmative action, saying its end would negatively affect the future of the workforce.
Private companies that are contracted by the federal government and some state governments are required by law to have affirmative action in place. The law asks companies to ensure the gender and racial demographics of their company match the makeup of available workers in that industry.
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The end of affirmative action “is going to have implications for the composition of the workforce because the pipeline is essentially getting restricted”, said Fidan Kurtulus, an economics professor at the University of Massachusetts Amherst who has studied the increase in diversity at private companies that had contracts with the federal government and were mandated by law to have affirmative action when hiring.
Others are worried about companies who will second-guess their DEI initiatives after the court’s decision, potentially having a chilling effect over corporate leaders who will cut back on DEI programs because of legal concerns.
“I worry that corporate counsels are going to be overly compliant,” Tillery said. “‘They struck it down in college admission, and even though we’re not doing college admissions, no one’s allowed to talk about race at all because we don’t want to get sued.’ That’s a huge mistake.”
Compared with private universities like Harvard and University of North Carolina, the defendants in the supreme court case that ended affirmative action, employers are operating under a different section of the Civil Rights Act. The court’s conservative majority found affirmative action to be a violation of Title VI of the Civil Rights Act, which bans racial discrimination by any entity that receives federal funding. Meanwhile, racial discrimination by employers is covered by Title VII of the Civil Rights Act, which prohibits employment discrimination for protected classes, including race.
Workplace diversity efforts are less straightforward than affirmative action policies taken on by colleges and universities. They encompass anti-bias training, mentorship programs, targeted outreach efforts and more – a broad set of programs companies take on to make their workplaces welcoming for employees and customers. In comparison, affirmative action is a specific policy of many policy options that help make a place, whether a school or an office, more diverse and inclusive.
“DEI is so much broader than that … targeted outreach at diverse colleges, auditing policies and procedures to remove implicit bias or creating employee resource groups of mentorship – those practices are not really regulated by Title VII in the sense that it doesn’t actually involve making a concrete employment decision around hiring and promoting,” said David Glasgow, executive director of the Meltzer Center for Diversity, Inclusion and Belonging at New York University Law School.
Glasgow pointed out that even if the court’s decision does not directly apply to employers, the decision could embolden people inside companies “to use the decision as an excuse to push back on [DEI initiatives]”, he said. And the conservative legal movement is likely to directly target DEI initiatives under the guise of discrimination, just like they did with affirmative action in higher education.
What this means for companies is essentially a continuation of the ongoing “culture wars” that has already reached corporate America. Employees and consumers will push back if a company revokes its DEI efforts, which could lead to serious consequences for a business.
“You’re going to be under pressure from your workers to keep these programs going. You’re also going to be facing talent sourcing pressures, and market pressures,” Tillery said. The supreme court affirmative action case was “a Title VI decision about college admissions. They should not be overly complying before anything has happened around Title VII. They should be thinking about how to foolproof their existing programs even before the challenges start.”