The Supreme Court’s recent ruling against race-based affirmative-action practices at universities has emboldened critics of diversity, equity, and inclusion (DEI) efforts in workplaces, and led companies to re-assess their practices.
What to do remains a bit murky, since the court ruling itself doesn’t apply to private companies. But we recently heard Kenji Yoshino and David Glasgow of NYU School of Law’s Meltzer Center for Diversity, Inclusion, and Belonging lay out clear recommendations for a group of corporate leaders, and we followed up to share them with Charter readers.
Here is a transcript from our conversation with Glasgow, edited for clarity:
What are your recommendations for workplaces in the wake of the Supreme Court ruling on affirmative actions at universities?
I would divide these into thinking about legal recommendations and cultural recommendations. Because the debate about what the ruling means for private workplaces has a legal dimension to it—which is challenges that may be brought in future lawsuits against private corporations—but it also speaks to a much larger cultural debate that people are having around DEI, ESG, 'wokeness', all of these kinds of topics. There's a role for organizations to play in how to navigate those cultural dynamics.
Starting with the legal dimension, first and foremost, it's going to be really important for organizations to do an audit of their existing DEI programs. I need to emphasize it should be done with legal counsel for that kind of audit. It's really to look at what you're already doing and consider the level of risk.
We would suggest a traffic light system: red, yellow, green. Red being the most risky, green being the least risky. It's a little bit of tea leaf reading because the affirmative-action decision is not directly about employment practices of private workplaces, it's about higher-education admissions. One naive view would be to say, 'This has nothing to do with DEI, so we can just carry on doing everything that we were doing before.' But this red/yellow/green analysis is really about saying where do we think the law might be headed, and what might that then mean for the programs that we're currently doing in DEI?
What activities fit in the red, yellow, and green categories?
I'll first back up and build on that point I was making about how the decision from the court didn't directly implicate private workplaces and private DEI practices. The court's decision was made under the Constitution's Equal Protection Clause and, by extension, Title VI of the Civil Rights Act, which is a prohibition on discrimination in activities that receive federal funding. What it didn't do was opine on Title VII of the Civil Rights Act, which is the main federal employment statute governing private workplaces. Under that Title VII statute, there are some long-standing precedents of the Supreme Court that have been around since the '70s and '80s that say private workplaces can engage in affirmative action in certain limited circumstances. If they're hiring people or promoting people into positions, if there's a traditionally segregated job category and they're attempting to overcome a manifest imbalance in their workplace, there are certain narrow circumstances in which employers are allowed to actually put a thumb on the scale and give preference, so to speak, to members of underrepresented groups.
That line of precedent is sort of independent from the precedents in the higher education context. So we're in a weird position in the law where affirmative action has been struck down in higher education, but it is technically still on the books in a private-employment context. And I would say it would be incredibly naive to think that those old '70s and '80s precedents on private workplace affirmative action are going to survive in the contemporary era. The court is way more conservative now than it was at the time that it rendered those decisions. The law has moved on from the logic of those decisions in a number of ways. The conservative legal movement already has gone after private workplaces, filing lawsuits, making complaints to the Equal Employment Opportunity Commission, writing angry letters to corporations telling them to stop doing all these DEI programs or they're going to sue them, etc.
So I think what's going to happen is a lot of these cases are going to make their way through the courts, and then some courts are going to follow the logic of the recent Supreme Court decision in saying that logic also carries over to Title VII, and therefore you can't do all of these workplace practices either. It may of course then make its way back up to the Supreme Court where the Supreme Court will have an opportunity to reconsider its decisions from the '70s and '80s just like it reconsidered its decisions from earlier decades on affirmative action.
We all see the writing on the wall of what will happen if it ultimately does that. So that's a very long windup to answering your question, which is to say, I think the red programs are the ones most directly analogous to affirmative action in the higher-education context, meaning situations in which employers directly and explicitly take account of protected attributes like race or sex under Title VII when making decisions like hiring and promotion.
Any employer that has a quota or set aside where it reserves slots for members of underrepresented groups or says that when they're choosing between candidates for promotions, they will give a preference to candidates who belong to an underrepresented group like a person of color or a woman in those decisions—those are the programs that are most analogous to affirmative action in a higher education context. Those are the ones that I think are the most vulnerable if a case goes up under Title VII to the Supreme Court. So any organizations that have practices like those I would describe as red.
What are yellow and green practices?
Green are really three categories of DEI work. One is de-biasing work. A lot of DEI is not about actually taking race and sex into account to put a thumb on the scale in favor of members of underrepresented groups. It's actually about trying to identify and remove bias from decisions to create a more even playing field for everyone in the organization. If you think about practices like creating structured interviewing for jobs where you look at the criteria that you're using to hire people, you find that some of them have potential implicit bias built into those criteria. So you audit those recruitment processes to create a more merit-based, structured process with consistent interview questions.
That's nothing like affirmative action. You're not preferencing anyone. In fact, to the contrary, you are trying to create an even, consistent process across the board. I can't see any problem with that. Similarly, something like training people on inclusive recruitment or implicit bias. There may be other substantive reasons why you might think that implicit-bias training is not worth doing. There are a lot of criticisms of implicit bias training. But from a legal standpoint, just making people more aware of biases that can be built into some of these employment practices and trying to mitigate those is fine. Removing stereotypical or biased language from job advertisements is another example of that. So anything that involves an identity-neutral de-biasing process within an organization is one category that I would call green. The second one is what we would call ambient DEI practices.
What's really important under Title VII is that if you're going to bring a lawsuit—let's say I am a white man who feels like I was discriminated against because I wasn't promoted into a job that I was qualified for—there actually has to have been an adverse employment decision made against me. In order for me to bring a lawsuit, I have to have missed out on an opportunity of being hired or being promoted or something like that. I can't just file a lawsuit saying I'm just disgruntled about some program that the employer has in my workplace. I need standing to bring the lawsuit. I would say most DEI practices that organizations have are much more ambient, meaning they're just sort of in the air trying to create a more inclusive work environment for everyone in that organization rather than actually tied to a specific employment decision that's being made.
If you think about something like creating employee resource groups that allow members of particular identities to get together and have events and networking and what have you—that's not tied to an employment decision. Or if you think about doing outreach to diverse colleges or having a speaker series on DEI issues in the workplace, or having family friendly policies like flexible work policies or nursing rooms in the office or what have you, there are so many practices that employers do that are aimed at creating a more diverse and inclusive workforce overall, but they don't actually build those considerations into account when they're deciding who to hire or who to promote. So they're quite fastidious about saying, when you are making a hiring decision, you actually need to apply merit criteria rather than just sort of hiring a woman because she's a woman, for example.
The third category is what I would call universal work, which is DEI practices that aren't actually targeted at specific demographic groups. They're really targeted at benefiting everyone in the workplace. These days, at least with the organizations we work with as a center, we are finding a lot of organizations are embracing universal DEI frameworks. They're looking at concepts like allyship or psychological safety or authenticity in the workplace, where they explicitly adopt those policies because it speaks not just to minority groups, but also members of historically dominant or majority groups. The idea is basically that a rising tide lifts all boats. If we make this workplace culturally safer for people to speak up and feel like they can be themselves at work, that benefits everybody. So again, if you're not targeting programs at specific demographic groups, but you're doing things that benefit everybody, I can't really see how that would be a violation of Title VII.
Those are really the three that I would cluster in the green category. And I honestly think the vast majority of DEI practices that organizations do really fall into one of those three green categories.
Then the yellow is really the fuzziest one, which is the stuff that's kind of in between the hardcore taking into account race and sex explicitly when you're hiring and promoting people and the softer, broader three categories I was just describing. A couple of things that could fit in there. One is a lot of organizations have targets, demographic targets that they publicize, such as 'We would like to have X percentage of Black managers in this job classification by 2030.'
Different organizations have different ways of meeting those targets. Sometimes it's expressed in a purely aspirational way: wouldn't it be nice if our organization were more diverse? Whereas others are much more strict: here's a specific percentage and specific job categories of specific identity groups. Then they build in a bunch of policies to incentivize people to meet those targets. So they might say to managers, "If you meet your targets, you get a bonus,' or 'We'll give you some extra score bump in your performance evaluation process so that you're more likely to be promoted in the next round.' Or 'We are going to wave spreadsheets at you every quarter to assess how well you're doing in meeting the targets that we've set for you.' The reason I call that yellow is it is not strictly red in the sense that you would still have to point to a concrete individual who lost a job or lost a promotion because of his or her race or sex.
In that sense, it's more ambient. But it's a little bit dangerous, I would say, because if you are, say a disgruntled white man who missed out on our promotion and you sue the company, you could point as evidence in your case to say, 'What's the evidence that I was discriminated against? Look, the company has said that it wants to hire more Black people or other people of color or women. It's set a really aggressive timeline for meeting that target. It told its managers that it's going to give them bonuses or other bumps if they meet the targets. It's putting a lot of pressure on them to meet it. And, look, I am one of the victims of this policy.' Courts, depending on how they look at that policy could decide, 'Yeah, that's bad,' or they could decide, 'No, it's kind of more aspirational.' So I would put that in this yellow zone.
Another yellow category would be using proxies or other kind of characteristics that could be conceived of as proxies for protected attributes. One of the debates in the higher education context is about what universities can do now that racial affirmative action has been outlawed. Can they just pivot over to looking at zip codes or socioeconomic status of candidates or something like that? And the court's majority decisions essentially said you can't do indirectly what we've prohibited you from doing directly. If you're just doing this as a proxy measure to achieve what we've outlawed, absolutely not. A similar issue is going to arise in an employment context where, if employers just say, 'Let's not give people a bump because of their race, but let's do it based on their socioeconomic status or their zip code and see if we can get away with that.' Some people are going to challenge that and say, 'What you're really doing is this is a pretext for racial discrimination.' Again, the court's going to have to decide which way it falls on that.
How should organizations apply this red/yellow/green framework? Should they discontinue all red activities, for example?
Some of this is going to depend on the level of risk aversion of the particular organization, of course. Part of it is what are you willing to tolerate? But to the extent that you've identified programs as 'these are probably more risky than we feel comfortable with,' instead of just immediately discarding those programs, you might think about whether there are ways that you can reframe or redesign some aspects of the programs to make them a little bit safer, to push them a little bit more toward the green zone. There's a few kind of pivots that you might consider, and I'm going to be cutesy and alliterative here. One is to think about shifts from cohorts to concerns. With programs targeted at specific demographic groups—like let's say an employee resource group—a lot of organizations these days are opening membership of those things to anyone who is concerned about that topic rather than only people who belong to a particular group.
Rather than it just being the Asian employee network and you have to be Asian to join, it could be anyone who cares about equity for Asian individuals, —an Asian employees and allies group or something—so that you're broadening access to whatever program you're talking about. Another one is a shift from diversity to de-biasing. This is about saying we are not going to focus quite as much on achieving specific demographic outcomes. We are going to try and shift over to a strategy of leveling the playing field out, where the purpose of this program is to address unfair barriers and biases that are preventing people from having access to equal opportunity. The third is numbers to narrative. This is about moving away from strict numerical metrics and thinking a little bit more about hardship narratives. For example, in the Supreme Court decision, the majority said you're allowed to take into account race to the extent that it reflects individual characteristics of the person. They can write in an essay about how race has affected their life and what adversities they've had to overcome. You could have a narrative-based thing in the workplace.
And then from unique to universal, meaning moving toward those green categories I was talking about—universal categories where instead of targeting unique programs for each individual group in the workplace, here's an LGBT program, here's a women's program, here's a Black person's program—you would create frameworks that encompass everybody and try to do a rising tide lifts all boats. So that's those shifts for risky programs. Then secondly, just doing that audit process helps you defend the ones that are less risky, because there's a lot of confusion out there right now. You have things like that letter that went out from Republican attorneys general around the country to Fortune 100 companies essentially saying, 'We are watching you. You're probably doing all this illegal stuff in your DEI programs. Hold onto all of your paperwork because we're going to sue you.'
If you've done the analysis of red/yellow/green and you've satisfied yourself with your legal counsel that some of your programs are actually safe or safe enough, you can push back on some of those efforts more easily. Or even in internal conversations. because within organizations, there are going to be conversations happening already in which the diversity and inclusion people and the general counsel are talking with each other. And sometimes the GC is going to be more risk averse and say, 'No, I don't like this. Let's just shut down all of these programs.' If you're a DEI officer who's equipped yourself with some of the knowledge of how these fit into frameworks, you can push back a little bit on some unfounded attempts to water down DEI programs.
We've been talking about the legal considerations as a result of this, and then what are your recommendations in terms of organizational culture in connection with the Supreme Court ruling?
This is speaking to the fact that the litigation aspect is really a much broader movement opposing DEI programs more generally. So it would be kind of technocratic to just think about what's going to be safeguarded in the court system when there's a much broader attempt both inside and outside organizations to squash DEI programs because they're perceived as being opposed to merit-based decision-making or various other kind of objections that are mounted to DEI programs. It could be merit, it could be something like unity, telling people, 'This is divisive that we are doing all this DEI work.' The advice there is just to say to people who do this work, 'Think about how I can overcome some of those arguments that people might mount against DEI so that I can justify our existence in these organizations at a deeper level than I might if I were just looking at this through a purely legal lens.'
And focus on the people in what we would call the movable middle. Dolly Chugh, our NYU colleague, has a great framework that she's adopted from a consultant colleague of hers called the 20-60-20 rule, where she points out that 20% people are diehard supporters of diversity and inclusion. Some 20% are diehard opponents, and about 60% are kind of in this squishy, movable middle. People spend way too much time worrying about the 20% who are the diehard opponents: 'How can we convince the sort of angry people who oppose everything that we do?' What they should be doing is thinking about strategies for speaking to the people in the middle who can be swayed either way, who are maybe sympathetic to arguments against DEI, but are not hardcore opponents to it.
Read our briefing on Yoshino and Glasgow’s recent book Say the Right Thing.
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