How to Support DE&I After the Affirmative Action Ruling

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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.

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