Supreme Court Decision on Race-Conscious Admissions Does Not Impede Diversity Efforts in the Workplace, Experts Say
Following the recent Supreme Court decision rejecting race-conscious admissions in higher education, legal experts and activists across the political spectrum have concluded that the ruling does not impede employers from pursuing diversity in the workplace. While conservatives argue that affirmative action programs are already illegal, liberals maintain that such programs are on firm legal ground. However, many experts believe that the ruling will have a practical impact on corporate diversity policies, potentially discouraging ambitious diversity programs or prompting companies to rein in existing policies to avoid lawsuits.
Law firms have advised companies to review their diversity policies in the wake of the Supreme Court decision. However, concerns have been raised that corporate counsels may prioritize avoiding lawsuits rather than advancing diversity. Alvin B. Tillery Jr., director of the Center for the Study of Diversity and Democracy at Northwestern University, expressed concern that companies may overly comply with legal standards to avoid lawsuits.
Many corporations have recently implemented programs to foster hiring and promotion of minority workers, particularly in response to the racial reckoning triggered by the murder of George Floyd in 2020. However, even prior to the Supreme Court ruling, companies were already facing legal pressure from conservative groups challenging their diversity efforts. The National Center for Public Policy Research, a free-market group, sent letters to numerous corporations demanding the reversal of hiring policies it deemed illegal. While the recent ruling does not directly relate to affirmative action in the corporate sector, the group believes it will deter companies from crossing legal boundaries.
Charlotte A. Burrows, chair of the Equal Employment Opportunity Commission designated by President Biden, emphasized that the Supreme Court decision does not impact employer efforts to foster diverse and inclusive workforces. Some companies targeted by conservative groups also defended their diversity efforts, asserting that their programs are compliant with existing law.
Affirmative action policies in the private sector are primarily voluntary and are governed by state and federal civil rights law. These laws prohibit employers from making hiring or promotion decisions based on race or gender, whether in favor of or against a candidate. However, exceptions exist, allowing employers to consider race if certain conditions are met, such as addressing industrywide discrimination or historical exclusion of minority groups.
Legal experts believe that the Supreme Court ruling may jeopardize programs that are already on uncertain legal ground. Leadership acceleration programs or internship programs limited to underrepresented minority groups are particularly vulnerable. Companies may also face legal challenges if their policies, though compliant on paper, perpetuate racial quotas or create discriminatory practices in practice.
Political attacks from the right against corporate diversity efforts have been increasing, with conservative groups mobilizing against such policies. Florida Governor Ron DeSantis has enacted legislation limiting diversity training in the workplace and restricting state pension funds from investing based on “woke” considerations. Legal groups advocating against diversity and inclusion policies have sent letters to the Equal Employment Opportunity Commission demanding investigations into large companies’ diversity programs.
While some legal experts suggest adopting race-neutral policies that promote diversity, others caution against overreacting to the Supreme Court ruling. Companies are advised to focus on removing obstacles that prevent diversity, such as training managers and recruiters to eliminate unconscious biases or expanding job advertising to attract a more diverse pool of candidates.
Ultimately, companies may face a higher risk of litigation related to discrimination against minority groups than against white individuals. The Equal Employment Opportunity Commission reported approximately 2,350 charges of discrimination against white individuals compared to about 21,000 race-based charges in employment in 2021.