Does the Court’s Affirmative Action Ruling Affect Workplace Diversity? What Employers Need to Know.

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The Supreme Court recently ruled that both private and public universities can no longer use race as a factor in their admissions decisions. While this ruling will have an immediate impact on higher education, it will also affect the employment pipeline those institutions provide, potentially leading to long-term reductions in the diversity of the American workplace. As a result, employers wishing to preserve or increase diversity will have to get creative with their recruitment and retention strategies.

A Ruling Amidst Anti-DEI Activism

The Court’s decision was handed down in the midst of a cultural moment of hostility to diversity initiatives in business, education, and employment. Anheuser-Busch and Target, for example, came under attack this summer for being supportive of the LGBT community in their product lines and advertising. And just this year alone, over 650 anti-LGBT bills have been introduced in statehouses nationwide, many of them targeting LGBT minors in schools. These bills have sought to regulate everything from school curricula to school athletics, locker rooms, and even bathrooms.

Florida has been a hotbed of anti-diversity activism. In 2022, the state passed a law limiting discussion of sexual orientation in schools, dubbed the “Don’t Say Gay” law, as well as the “Stop WOKE Act,” which requires that teaching on race not make students feel discomfort. As pressure continued to mount against diversity initiatives, Florida adopted a new law in May 2023 that bans government funds from being used to promote diversity, equity, and inclusion (DEI) programming in that state’s public higher education system. It also outlawed certain courses deemed to “distort” history or to promote “identity politics.” And just recently, Florida’s State Board of Education adopted new curricular standards to teach that American slavery benefitted some enslaved people.

DEI positions were already being eliminated in the beginning of 2023, but that trend seems to have found momentum in the wake of the Court’s decision. Texas just passed a law outlawing all DEI roles in higher public education, prompting the University of North Texas to dissolve its department, which will involve reorganizing various student services. Corporate America is not far behind: cuts to DEI positions are widespread and seem to be spurred on by the anti-DEI rhetoric of leaders such as Florida Governor Ron DeSantis and Texas Governor Greg Abbott.

Less Diversity at School and at Work

It is reasonable to assume that disallowing race to be taken into consideration in college admissions would reduce the number of students of color admitted to institutions of higher education, and in turn suppress the number of graduates of color available to the employment pipelines those institutions provide to the American labor force. And sure enough, the data bear this out.

After various states banned affirmative action policies in college admissions, their public universities saw significant declines in the number of students of color, including a whopping 60% drop at UCLA and UC Berkley following a 1996 ban. Black student enrollment at the University of Michigan dropped from 8% before a ban to just 4% currently. In turn, students of color not benefitting from affirmative action typically earned about 5% less than they would have if the policy were still in place, indicating the policy’s absence depresses not only diversity in education but also economic growth. Asian and white students on average saw little to no dips in their earning potential.

Ending affirmative action has also harmed workplaces by reducing diversity. A multi-state study conducted by Harvard’s Kennedy School from 1990 to 2009 and focusing on state and local government workplaces found that Latino men’s participation in the workforce was reduced by 7% after a ban on affirmative action and continued for 3 years, while black women’s participation dipped by 4% and continued to fall for the initial 5 years. Asian women’s participation dropped off by 37% (precipitous due to their already low numbers in the workforce), and lasted for 1 year post-ban.

What Businesses Need to Know

So what does this all mean, if anything, for employment? The ruling itself does not address the workplace, but some observers fear that its logic could be applied to businesses.

The Equal Employment Opportunity Commission (EEOC), the federal agency charged with rooting out discrimination in employment, issued a statement to clarify that the Court’s decision was not directly relevant to employment. That means the Court’s opinion should have no discernible effect on hiring policies or workplace demographics.

Nonetheless, there are litigious groups ready to wage war against corporate DEI practices and programs, including any kind of affirmative action in hiring. A group of state attorneys general has even sent letters to Microsoft and other companies urging them to revisit their diversity commitments in light of the ruling. But what makes employment decisions different from college admissions is that an employer is often making a highly individualized determination for each open role. That reduces the likelihood that an employer is relying on race or another characteristic to a legally impermissible extent.

Even so, businesses must remain wary of any sort of racial quotas, as well as of certain kinds of programs dedicated specifically for minority groups. These initiatives can include everything from internship programs to advancement and promotion schemes if membership in them is only available to minority candidates.

What Businesses Can Do

Despite the court’s ruling, businesses should feel that they can lean on their current diversity initiatives and even enhance them. Below are some recommendations for preserving and promoting diversity, to ensure you have a pipeline of talent that sees opportunity in your organization.

  • Clarify your values. Ensure that the values you publicly espouse actually reflect your commitments and that your leadership team is on board. If either of these pieces is off, it may be time to revisit them. You will also want to confirm that your hiring team is fully aware of the qualities leadership is looking for in new hires and can adequately articulate them to job seekers.
  • Conduct a workplace culture and diversity audit. Sometimes leaders aren’t totally sure how diverse their own organizations are, or whether the workplace culture is experienced by employees as positive or toxic.Healthy cultures are attractive to any new talent, but especially minority candidates. A culture and/or diversity audit offers a bird’s-eye view of what is going well and what isn’t, and can help you identify the steps to take toward becoming a more desirable employer.
  • Review job criteria. Oftentimes a job description will lead applicants to self-select out of the application process. Overwhelmed by the education and experience requirements, they simply move on. But maybe that job seeker would have been your next employee whisperer in HR or your next graphic designer whiz. When reviewing descriptions, ask yourself if an advanced degree, or even a 4-year degree, is really needed. What about an associate’s degree? Or the equivalent in work experience? Update job posts as needed to strike the right balance between necessary qualities and unnecessary gatekeeping.
  • Broaden your pool of potential hires. Hiring managers often learn of job candidates by word of mouth and personal connections. And many companies, especially elite ones, tend to return to the same sources for recruitment, usually elite colleges. If you are serious about diversifying your workforce, always post open roles and look further afield to state schools and HBCUs for your next class of talent.
  • Change your recruitment software—or lose it. Some organizations receive so many applications that they use mechanized software to whittle down the applicant pool. Yet such software can inadvertently weed out otherwise promising candidates. Sometimes, it can even work against your diversity goals. Find a more diverse-friendly solution or consider losing the software entirely.
  • Keep it broad or keep it narrow. Certain diversity initiatives that are specifically directed to a minority group may be targeted for legal action by unhappy employees, and may actually run afoul of the law. It is best to offer mentorship programs, promotion schemes, and other initiatives that are available to all workers. On the other hand, when it comes to making hiring and promotion decisions, you want to keep your analysis rather individualized, so as not appear to be making decisions primarily based on someone’s minority status.
  • Offer remote work. If you want to broaden your talent pool and increase the chances of finding diverse talent, offer remote work options and support the employees who chose them. Doing so will allow you to solicit applications from all over the country and even the world, increasing your potential reach to minority candidates. Remote work also opens your organization to various other types of diverse workers, including working parents, caregivers, and those who live in rural areas.
  • Remain attractive by offering DEI initiatives. Most corporate DEI initiatives in no way risk violating the law, so you shouldn’t let fears of litigiousness hold back your efforts. After all, diverse job seekers want to know that their next workplace will see and respect them—and have a healthy workplace culture. Offering affinity groups and regular workplace training on diversity issues and implicit bias are two easy ways you can signal to job seekers that you would be a good fit for them. Reflect on what else you can do, and be sure to mention it in job descriptions and interviews as needed.

The Court’s affirmative action decision itself leaves corporate DEI programs untouched, but the ruling’s logic may seep into the employment sphere. Even so, the suggestions above will enable your company to abide by the law while also promoting a diverse workforce. As always, if you have questions about your workplace or diversity initiatives, consult with employment attorneys who are experienced in business counseling and workplace diversity.