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.
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