No qualified candidate should ever be turned away because of the color of their skin. That’s true in every sphere of public life—including education and employment.
That’s why the Supreme Court’s recent decision in Students for Fair Admissions, Inc. v. Harvard and Students for Fair Admissions, Inc. v. UNC. is a great victory for equality of opportunity. The Court affirmed in its decision that, contrary to what had become all but common practice in university admissions programs, colleges cannot consider race as a factor.
But while higher education will now have to correct course, employers are still implementing race-conscious employment practices. As EEOC Commissioner Andrea Lucas writes at Reuters, while the Court’s affirmative action decision applies specifically to the university setting, it could also affect race-based hiring diversity quotas, race-specific mentoring or scholarships, and more. At minimum, the ruling should serve as notice that businesses should reexamine a wide range of their current policies.
The Court never has blessed employers taking race-conscious employment actions based on interests in workforce diversity…
Even though the Court's ruling today does not alter federal employment law, now is a good time for employers to review their compliance with existing limitations on race- and sex-conscious diversity initiatives. Companies seriously err if they evaluate their risk under federal employment law by mistakenly referring to (now outdated) standards for higher education admissions which had approved of diversity-motivated affirmative action. And today's ruling only heightens those employers' practical risks by reemphasizing the Supreme Court's rejection of diversity, nebulous "equity" interests, or societal discrimination as justifying actions motivated — even in part — by race, sex, or other protected characteristics. Companies continuing down this path after today may violate federal antidiscrimination laws.
As Lucas observes, current race-conscious initiatives in the workforce are often promoted under the name of equity and diversity. But these priorities simply don’t meet the high bar the Court deems necessary to justify racial preferences in hiring.
Since the 1970s, the Supreme Court has authorized employers to consider race (and sex) only in very limited circumstances as part of voluntary, remedial affirmative action plans. These remedial plans must be temporary, narrowly tailored to the company or industry at issue, and justified by a "strong basis in evidence" that remedial action is necessary. A general interest in diversity or "equity" is not sufficient to allow race- or sex-motivated employment actions. Nor are references to societal discrimination, or differences between the composition of a company's workforce and "society," or the company's customer base.
Likewise, even in the limited contexts in which affirmative action currently is permitted, an employer still cannot use racial or sex-based quotas. Companies also cannot take race-motivated actions to maintain a demographically "balanced" workforce.
Lucas is right to call attention to the problems with Diversity, Equity, and Inclusion (DE&I) practices in the workforce. While DE&I-based hiring and training practices and initiatives are legally questionable, they also pose a long-term threat to workplace environments.
Rather than promoting shared values across different backgrounds and beliefs, DE&I trainings divide people by distributing praise and blame based on unchangeable characteristics like sex, and skin color. Recent studies show that when companies use narrowly defined concepts of “diversity” in their trainings, they risk dividing employees and discouraging the diversity of thought and opinion necessary for growth.
In interviews with over two dozen executives at 18 companies, non-partisan group Business for America concluded “the way they’ve rolled out D.E.I. has exacerbated divides even while addressing valuable issues. It has created some hostility, resentment.” Business of America’s conclusion is also supported by the Viewpoint Diversity Score 2023 Freedom at Work Survey conducted by Ipsos, which found that a plurality of U.S. employees say DE&I divides, rather than unites, colleagues. The same number of employees also said they are less likely to trust others or feel included at work if they were told in a company-sponsored training that they were complicit in racism or oppression based on their skin color, religion, or sex.
On the other hand, businesses that reject narrow-minded ideologies like DE&I and instead embrace viewpoint diversity are better equipped to serve people with diverse values, recruit and retain top talent, and promote a culture of respect and civil discourse. For example, Coca Cola Consolidated is leading the way in an alternative approach to DE&I by emphasizing “teamwork,” “excellence,” and “personal growth” – goals that are attainable for everyone regardless of their background or creed.
Today’s legal landscape and polling data make one thing clear: DE&I is toxic, and a new approach is necessary. Companies should take Commissioner Lucas’ advice and adopt solutions like BrighterSideHR and Carol Swain’s Real Unity Training Solutions that prioritize true diversity, and respect the inherent dignity and uniqueness of each individual.