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The SCOTUS Ruling on Race Conscious Decisions in Higher Education

It’s Time for Organizations to Redouble their DEI Efforts – And it’s Time to Commit to Doing it Right!


The recent Supreme Court decision on Affirmative Action in higher education is creating a ripple of anxiety that reaches far beyond the education sector. In a recent article (1), Noah Feldman warned, “Whether gradually or quickly, every chief diversity officer in the country will need a new job title — and perhaps a new job. The pursuit of diversity, equity and inclusion will require rebranding and reimagining.”


Throughout the US, DEI advocates are wondering: Will my organization have to abandon its DEI efforts? Does this mean that we can no longer recruit underrepresented populations? Can I gather data on underrepresented populations? What do we say to our employees? What about my organization’s DEI incentive program? Will I have a job as a corporate DEI professional?


For an excellent assessment of the legal implications of the ruling, read “Does the Supreme Court Decision on Affirmative Action Affect your Company’s Diversity Initiatives” by Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law and faculty director of NYU Law’s Meltzer Center for Diversity, Inclusion, and Belonging, and David Glasgow, Executive Director of the Meltzer Center. Below, I offer a few thoughts based on my years of experience leading DEI transformation efforts.


Will my organization have to abandon its DEI efforts?

Definitely not! As Yoshino and Glasgow tell us, the Court’s decision was about affirmative action in higher-education admissions, not affirmative action in private workplaces. While the Court held that affirmative action violates the Equal Protection Clause in the US Constitution (and, by extension, Title VI of the Civil Rights Act of 1964), it did not hold that affirmative action violates Title VII of the Civil Rights Act of 1964—the main statute governing the employment relationship. And the ruling does not directly impact employment laws—federal contractors with mandatory affirmative action programs still have those obligations. Nothing in this opinion directly impacts private employers with voluntary DEI efforts because these efforts “do not involve employers taking race or other legally protected characteristics into account when making hiring or promotion decisions” That has already been prohibited in decision making under Title VII.


The conflation of the higher education decision with organizational DEI efforts is simply wrong.


However, it is an opportunity for organizations to take a hard look at their DEI approaches and ensure that they are getting it right. What does that mean? It means being holistic, approaching the entire ecosystem and taking a systems approach.


Does this mean that we can no longer recruit underrepresented populations?

You can continue to reach out to a range of colleges and universities. It is true that as a result of the SCOTUS decision in higher education, the pipeline of students will get less diverse and organizations will have to work harder to reach out earlier to a broad range of students through internships and scholarships based on established criteria such as life experiences. And organizations will have to invest in middle and high school education in order to build the pipeline of diverse talent.


Can I gather data on underrepresented populations?

Yes- you can gather aggregated data and use it to determine adverse impact in the talent lifecycle. With that understanding you can implement initiatives to address the pain points. Initiatives can be designed to remove bias for all employees. The data is also effective in demonstrating the WHY of your DEI initiatives and in demonstrating the impact.


What do I say to my employees?

Reaffirm your organization’s commitment to DEI as a business imperative and link it to your business strategy. Stay the course - you have made some hard-won gains, now is not the time to let them slip away or you risk losing credibility with your employees as well as their commitment and engagement.


What about my organization’s DEI incentive program?

Ensure that your DEI incentives include both lag and lead indicators or both the outcome numbers and the processes and actions that, if done consistently, will get you to the outcomes. Make sure you provide enough weight to the inclusive actions in your incentives. These are simply good inclusive leadership practices and can include mentoring and sponsoring talent, sponsoring ERGs, engagement in the community, and developing a range of diverse successors. By including the lead indicators, you are not focused only on numeric race outcomes but instead are incenting managers for inclusive leadership practices.


Will I have a job as a corporate DEI professional?


Despite recent articles in the Wall Street Journal and Financial Times about exits by Chief Diversity Officers as organizational priorities shift, my guess is that the DEI role is here to stay. It might evolve to be broader than DEI and include other aspects of HR or the business. Over the past few years, the importance of DEI accelerated as organizations actively recruited DEI professionals to address the impact of COVID and tragic deaths of Black men and women such as the murder of George Floyd and the global outrage. Those organizations that simply reacted to external events as opposed to integrating the criticality of DEI to the business and its employees, will likely scale back their DEI efforts until the next crisis. The DEI professional’s job will likely be harder as they play the role of Influencer in Chief- but DEI professionals know this drill only too well having been there before! They are up to the challenge!


So what can DEI professionals do?

  • Stay tuned to external trends and consider the DEI implications and evolve your strategy to align and address these trends.

  • Focus on understanding your organization’s business and build a bridge between your DEI goals and the business in a practical way.

  • Hone the business case for your organization and continue to ensure that DEI adds value to the organization.

  • Gather aggregated data to identify adverse impact and develop initiatives to address bias in the system for all employees.

  • Know what you are solving for and how to position it for most inclusion and least backlash.

  • Broaden your DEI efforts beyond HR and continue to be inclusive of a broad range of identities.

  • Build your base of allies with your business leaders.

  • Audit your DEI initiatives and partner with your legal teams to see how you can together mitigate risk while meeting your organizations desired DEI goals.

  • Communicate with your employees because if you are anxious, they most certainly are!

  • Find ways to nurture yourselves and stay resilient.


What can organizations do?

  • The D remains important: Focus on diversity and widening the talent pool so you can hire the best qualified regardless of identity. And focus your efforts widely on all aspects of our multifaced identity.

  • Move from D to I: Focus on fostering a culture of inclusion where all talent can participate fully. Ensure that you are nurturing a broad range of employee resource groups (ERGs) including allies and encourage them to partner across ERGs. Make sure that each employee has an ERG they can identify with: veteran, generational etc.

  • Address the E: Ensure that your systems are unbiassed for ALL talent. Eliminate systemic barriers that inhibit full participation and equal access to opportunities in your talent life cycle- including hiring, promotion, succession planning, pay etc. Focus on enforcing equal opportunities not equitable outcomes.

  • Open to all: Ensure that your development initiatives to diversify the pipeline are open to all while addressing those who need these opportunities the most. In your mentoring, coaching and sponsorship programs, consider “oversampling” certain populations based on their life experiences.

  • Move beyond HR: Embed DEI in all your systems and processes including marketing, supply chain, business development and more.


Conclusion

We have seen these DEI ebbs and flows before and we have always risen to the occasion. This is another inflection point. It is an opportunity to re-double our efforts - to commit to making our DEI efforts stick - to look for innovative solutions. It feels overwhelming, I know. And it is good to be humble in the face of what lies ahead. But EACH of us has the power to influence our corner of the world, regardless of who we are. If not you, then who?

 

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References

(1) The Supreme Court Will Make It Harder to Hire a Diverse Team: Analysis by Noah Feldman | Bloomberg; October 31, 2022 at 12:30 p.m. EDT

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