Viewpoint: What SCOTUS’s Affirmative Action Decision Means for Corporate DEI

By Kenji Yoshino and David Glasgow July 19, 2023

Editor's Note: SHRM has partnered with Harvard Business Review to bring you relevant articles on key HR topics and strategies. 

Prior to the Supreme Court's recent bombshell decision on affirmative action, some predicted that a ruling to ban the practice would "take down" the diversity industry or deliver a "concussive" blow to workplace diversity and inclusion efforts. After the court effectively abolished race-conscious college admissions, some voices doubled down. The organization America First Legal—founded by former Trump advisor Stephen Miller—declared that "all DEI programs" were now "illegal."

Not so fast. We believe the court has left plenty of room to continue advancing diversity and inclusion in the workplace.

We don't mean this in the most obvious sense, which is that the court's opinion focused on governmental actors and universities rather than on private employers. When the right case reaches the court, the same justices who just endorsed a "colorblind" approach to higher education could also hold that private employers cannot consider race, sex, or other protected characteristics in workplace decisions.

Such a ruling would indeed imperil the most aggressive pro-diversity policies. 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 are all vulnerable to a judicial rebuke.

Yet diversity and inclusion initiatives extend far beyond the policies that travel under the moniker of affirmative action. Even assuming the law continues to evolve in a conservative direction, we believe at least three varieties of diversity and inclusion work will endure. We call these debiasing work, ambient work and universal work.

Many common diversity and inclusion practices involve debiasing the workplace. In a canonical example, several decades ago, women composed only 5% of musicians in the top five orchestras in the United States. As of 2016, they were more than 35%. Researchers attribute this dramatic increase in part to a simple design fix: The orchestras obscured the gender of musicians by requiring them to audition behind a screen.

While using a physical screen to improve the hiring process is impractical in most workplaces, many employers adopt similar initiatives to debias their environments, such as purging stereotypical language from job advertisements, conducting structured interviews with consistent questions, and refining promotion processes to make them more transparent and merit-based. Most unconscious bias training—whatever you think of it—seeks to remove barriers to equal opportunity, so it's consistent with the "colorblind" philosophy laid out by the six conservative justices in the court's recent ruling.

Second, while anti-discrimination law regulates discrete employment decisions, such as hiring and promotion, diversity and inclusion programs are often ambient. In our experience, it's a rare employer that explicitly tells managers to consider race or gender when choosing between job candidates. Instead, they typically adopt a variety of initiatives to advance workforce diversity overall, such as conducting outreach to diverse colleges, establishing employee resource groups, creating mentorship programs, and implementing family-friendly policies like nursing rooms and flexible work options. Even if a future Supreme Court decision declares that employers can no longer use race or gender to balance their workforce, these broader diversity initiatives involve no such thing.

Importantly, a disgruntled employee cannot challenge an employer's diversity policies under the main federal statute regulating employment—Title VII of the Civil Rights Act of 1964—merely because they feel frustrated or resentful. Rather, in a typical claim, the employee needs to show that they suffered an "adverse employment action" like being denied a job opportunity, refused a promotion, or fired. Then they need to show that the action was taken because of their race or sex. Simply pointing to the existence of the Black employee network or Women's History Month celebrations as evidence of discrimination won't cut it.

Finally, instead of interventions targeted at specific demographic groups, many organizations we work with are leaning into universal diversity and inclusion frameworks that lift all boats together. For example, the concept of "allyship" has swept corporate America in recent years, in part because the concept applies to everyone: We all have a mix of advantages and disadvantages, so we can all be allies to each other and receive allyship in return.

Other universal frameworks focus on creating work cultures that allow for greater authenticity and self-expression, or that increase employees' "psychological safety" to speak up without fear of punishment. These strategies are legally safe because they benefit everybody, including members of historically dominant groups. But it's people at the margins who stand to benefit most, precisely because they are the ones who feel most excluded from workplaces without such initiatives.

The court's colorblind turn is, unfortunately, a symptom of a broader cultural backlash that has put advocates of diversity and inclusion increasingly in a defensive crouch. Three years ago, on the heels of a resurgent Black Lives Matter movement, organizations were clamoring to demonstrate their commitment to social justice. Now, under pressure from activists and politicians on the right, many organizations are watering down their diversity initiatives and using economic conditions to lay off the professionals who work on them.

It is perhaps inevitable that some corporate leaders will pounce on this Supreme Court ruling as a reason to abandon programs they already opposed. Yet these three varieties of work—debiasing, ambient and universal—show that the era of diversity and inclusion is far from over. So long as employers do not use protected characteristics like race and sex when making concrete employment decisions, they are free to promote a more inclusive culture and break down barriers preventing women, people of color and other marginalized groups from thriving in their workplaces. Given the benefits of a diverse and inclusive workforce for innovation, productivity, and employee engagement, such initiatives are not just an ideal, they're a necessity for businesses in the 21st century.

At a time of rapid demographic and social change, it is more urgent than ever to shape institutions so that everyone—regardless of their identity and background—can belong. That work remains essential and, crucially, legal, even under this activist Supreme Court.

Kenji Yoshino is the Chief Justice Earl Warren Professor of Constitutional Law at NYU School of Law and the faculty director of the Meltzer Center for Diversity, Inclusion, and Belonging. He is the author of three books: Speak Now: Marriage Equality on Trial (2015); A Thousand Times More Fair: What Shakespeare's Plays Teach Us About Justice (2011); and Covering: The Hidden Assault on Our Civil Rights (2006). He is a co-author of the new book SAY THE RIGHT THING: How to Talk About Identity, Diversity, and Justice (Atria).

David Glasgow is the Executive Director of the Center for Diversity, Inclusion, and Belonging and an Adjunct Professor of Law at NYU School of Law. He is a co-author of the new book SAY THE RIGHT THING: How to Talk About Identity, Diversity, and Justice (Atria).

This article is reprinted from Harvard Business Review with permission. © 2023 Harvard Business School Publishing Corp. Distributed by The New York Times Licensing Group.



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