While the Supreme Court’s recent ruling on affirmative action has focused on government actors and universities, it is inevitable that some corporate leaders will use it as a reason to abandon their diversity, equity, and inclusion programs. when opposed. However, the authors argue that the court left a lot of room to continue the development of DEI in the workplace. Three common practices will endure even as the law continues to move in a conservative direction: 1) practices to combat bias, such as removing stereotypical language from job descriptions or conducting structured interview with a standardized list of questions; 2) ambient policies that work to promote overall diversity, such as employee resource groups, mentoring programs, or family-friendly policies; and 3) universal policies, such as increasing psychological safety. These strategies are legally safe because they benefit everyone, but people on the margins are the ones who benefit the most, because they feel that they are largely excluded from workplaces without such initiatives.
Before the Supreme Court’s recent decision on affirmative action, some predicted that a decision to ban the practice “”lower“the diversity industry or provide a”stunning” plague workplace diversity and inclusion efforts. After the court effectively struck down race-conscious college admissions, some voices doubled down. The organization America First Legal – founded by former Trump advisor Stephen Miller – MANILA that “all DEI programs” are now “illegal.”
Not so fast. We believe the court leaves plenty of room to continue progressing diversity and inclusion in the workplace.
We did not mean this in the most obvious sense, which is that the court’s opinion focused on government and university actors rather than private employers. If the right case makes it to court, the same justices who simply endorse a “colorblind” approach to higher education may also hold that private employers cannot consider race, sex, or other protected characteristics of workplace decisions.
Such a decision would undermine the most aggressive pro-diversity policies. Reserving hiring or promotion slots for underrepresented groups, instructing managers to use race or gender as a “tiebreaker” when choosing between candidates, or setting strict targets demographically tied to the manager’s pay are all vulnerable to a judicial reprimand.
Yet diversity and inclusion initiatives are more than policies that travel under the moniker of affirmative action. Although the law continues to evolve in a conservative direction, we believe that at least three types of diversity and inclusion work will endure. We call this debiasing work, ambient work, and universal work.
Many common diversity and inclusion practices include deviance in the workplace. In a canonical example, a few decades ago, women made up only 5% of musicians in the top five orchestras in the United States. As of 2016, they are more than 35%. Researchers QUALITIES this remarkable development is in part down to a simple design fix: Orchestras hide the musicians’ gender by asking them to audition behind a screen.
While using a physical screen to improve the hiring process isn’t practical in most workplaces, many employers adopt similar initiatives to debias their environments, such as cleaning stereotypical language from job advertisements, conducting structured interviews with consistent questions, and refining promotion processes to make them more transparent and based on merit. Most unconscious bias training – whatever you think of it – seeks to remove barriers to equal opportunity, so it’s consistent with the “color blind” philosophy. put six conservative justices in a recent court decision.
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 clearly tells managers to consider race or gender when choosing between job candidates. Instead, they often adopt various initiatives to promote diversity in the workforce as a whole, such as conducting outreach at various colleges, establishing employee resource groups, creating mentoring programs, and implementing family-friendly policies such as nursing rooms and flexible work options. Although an upcoming Supreme Court decision states that employers can no longer use race or gender to balance their workforce, these broader diversity initiatives are exempt from this.
Importantly, a disgruntled employee cannot challenge an employer’s diversity policies under the primary federal law regulating employment — Title VII of the Civil Rights Act of 1964 — simply because they frustrated or angry. Instead, in a typical claim, the employee must show that they suffered an “adverse employment action” such as being denied a job opportunity, denied a promotion, or fired. Then they must show that the action was taken because of their race or sex. Simply pointing to the existence of a Black employee network or celebrating Women’s History Month as evidence of discrimination won’t cut it.
Finally, rather than interventions targeted at specific demographic groups, many organizations we work with lean toward 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 is universal: We all have a mix of advantages and disadvantages, so we can all be allies of each other and receive an ally in return. .
Other universal frameworks focus on creating work cultures that allow for greater credibility and self-expression, or that increase “”psychological safety” to speak without fear of punishment. These strategies are legal because they benefit everyone, including members of historically dominant groups. But people on the margins are the ones who benefit the most, because they feel the most excluded in 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 on the defensive. Three years later, on the heels of a resurgent Black Lives Matter movement, organizations are clamoring to demonstrate their commitment to social justice. Now, under pressure from right-wing activists and politicians, many organizations are scaling back their diversity initiatives and using economic conditions to rebuff the professionals who work on it.
It is inevitable that some corporate leaders will use this Supreme Court ruling as a reason to abandon the programs they have opposed. But these three types of work – debiasing, ambient, and universal – show that the era of diversity and inclusion is far from over. As long as employers do not use protected characteristics such as race and gender to make specific employment decisions, they are free to promote a more inclusive culture and break down barriers that hold back women, people who color, and other marginalized groups to advance in their workplaces. Given the benefit of a diverse and inclusive workforce for innovation, productivity, and employee engagement, such initiatives are not just an ideal, they are a necessity for businesses in the 21st century.
In an era 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 be included. That work remains important and, crucially, legal, even under the activist Supreme Court.
