There’s a hustle afoot around the Supreme Court’s recent decision striking down affirmative action, Students for Fair Admissions v. Harvard. In a blog post titled “America First Legal Puts Woke Corporations… on Notice,” America First Legal, an organization headed by former Trump advisor Stephen Miller, asserts that “all DEI programs” are now “illegal.” Miller offers pro bono legal help against “institutions perpetuating woke fascist bigotry against our fellow citizens.”
This is politics, folks; don’t mistake it for law.
At the most basic level, the Supreme Court’s decision interpreted the Equal Protection Clause of the U.S. Constitution, which does not typically apply to private employers. Also basic: Race-based employment decisions already were illegal under Title VII, a federal statute. That precludes practices like reserving hiring or promotion slots for people of color and using race as a tiebreaker.
Moreover, nine states already prohibit affirmative action based on race, typically based on their state constitutions. In California, where I live, Proposition 209 prohibited affirmative action based on race in state university admissions, state hiring, and state contracting nearly 30 years ago. I have never heard a whisper that Prop 209 makes DEI programs of private companies illegal.
So commentary opining that “corporations…[will] just shut down all their DEI work” and “corporate diversity efforts [are] in legal trouble” seems a bit hysterical.
The only reason corporate DEI programs are implicated is because of a few sentences in Justice Neil Gorsuch’s concurring opinion, which was joined only by Justice Clarence Thomas. Gorsuch’s concurrence reaches far beyond the issues involved in the case at hand. It briefly discusses the federal statute prohibiting race and sex discrimination in employment, to signal to future plaintiffs that he would welcome future lawsuits against employers.
So we’re down to tea leaves and speculation about whether Justice Gorsuch might be able to assemble a Supreme Court majority down the road — particularly since lavishly financed conservative non-profits like America First Legal have promised future litigation.
In fact, Cynthia Thomas Calvert of Workforce 21C, a human resources consultancy, notes that “‘reverse discrimination’ lawsuits by white employees already were increasing before the Supreme Court decision.” One employee was awarded $3.8 million; in a second suit, a jury awarded $25.6 million. These are big dollar amounts but a small number of lawsuits. And these awards may not survive: The first has been appealed and the second probably will be. Stay tuned.
Plaintiffs challenging company diversity statements, or goals that a certain percentage of their workforce be people of color, need to show that the goal resulted in an “adverse employment action” that harmed their careers. Employers will argue it did not, and will point out that courts give companies broad discretion to run their businesses as they see fit. All this can make these suits hard to win.
The most effective approach to DEI is also the best for controlling legal risk: Focus your DEI program on interrupting the bias that’s constantly transmitted through basic business systems. This is how most corporate DEI programs, which typically focus on trainings and tweaks to organizational systems to level the playing field, already work.
How? Let’s take an example of hiring bias found in one of the 25 bias interrupters experiments my team currently has in the field. We found that white men at a tech startup were being hired with much lower ratings than any other group. We also found that white men typically were rejected only if they had very low ratings. Candidates from other groups were rejected even when they had far higher ratings.
The tech start-up we’re working with went from being reluctant to collect and analyze data to requiring all employees involved in hiring to take a workshop we developed on interrupting bias in hiring. Basing your DEI program on this kind of data can help change a company’s climate. Metrics move mountains.
Collecting this data can also decrease legal risk because Title VII prohibits policies that create a disparate impact based on race or gender. No company wants to learn about this kind of problem only after a plaintiff has sued for discrimination. Forewarned is forearmed.
Once you have the data you’ll need to fix any problems you find. Don’t leave biased systems in place and then try to solve the problems you’ve created by explicitly considering race at the last minute. Instead, follow basic precepts of industrial-organizational psychology by increasing structure. For example, CVs should be reviewed by ranking each candidate on predetermined competencies using a rubric and standardized scale. Then add in procedures designed to protect against the kinds of bias documented by experimental social psychologists. For example, keep track of when requirements get waived, and look for patterns. (Research shows that requirements typically are applied rigorously to out groups but leniently to in groups.)
If you do this, you will not fall afoul of the Students for Fair Admissions ruling, because you are avoiding precisely what the majority opinion found so offensive: explicit racial preferences.
As Chief Justice Roberts noted in his opinion, Harvard’s racial preferences led to a situation where a Black student in the fourth lowest academic decile had a higher chance of admission than an Asian American in the top decile. We have never, ever found anything like this at a company, and we have worked with scores of companies for over a decade.
The typical problem is epitomized by one telling statistic: In our database of nearly 20,000 people, 80% to 88% of white men report fair access to career-enhancing assignments while the percentage among women of color sinks as low as 50%. This is a recipe for a lawsuit.
Two final parts of the majority opinion hold messages for the corporate world. If you do want to hire a qualified person of color in a context where a reverse discrimination suit might ensue, the majority opinion tells you exactly what to say. Students for Fair Admissions says that while one cannot give someone an automatic boost based on race, one can consider how a candidate overcame various life obstacles, including racial discrimination. Heads up that this is how to talk.
The final important part of the majority opinion is its discussion of stereotyping. Harvard’s “admissions process rests on the pernicious stereotype that ‘a black student can usually bring something that a white student cannot offer,’” Justice Roberts wrote. “UNC is much the same. It argues that race in itself ‘says [something] about who you are.’” In the court’s view, “it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.”
This language has implications for another common DEI practice: employee resource groups (ERGs), or voluntary groups of employees who align around a shared identity. These groups reflect on the evidence-based-but-now-illegal assumption that (for example) Black employees tend to have a different experience than white employees at your company.
The simple fix, according to Laura Maechtlen, a partner at Seyfarth Shaw LLP, to open up ERGs to anyone who supports the mission of the group. You should also make sure your ERGs have a mission statement, business goals, and rules that prevent people from joining the group simply to disrupt it. This is best practice anyway, because this approach can help reduce backlash and develop allies. If your ERG includes capacity building (such as leadership training), make sure that the training also offered in other contexts.
Here’s the bottom line: Far-right advocates like American First Legal are pretending that Students for Fair Admissions stands for a lot that it doesn’t stand for. No harm, no foul: that’s what advocates do. But don’t mistake it for a serious assessment of legal risk. It isn’t.