One Year After SCOTUS’s Affirmative Action Decision: Pivoting with Purpose
A Brief LookBack
On June 29th, 2023, the Supreme Court (SCOTUS) handed down one of the most consequential racial rulings of this generation-a swift and definite dismantling of affirmative action as we knew it U.S. institutions of higher education. The Students for Fair Admissions ruling held that race-based admissions at colleges and universities violated the Constitution, but it also conceded that holistic considerations of one’s life experiences, such as racism, could still play a part in assessing applicants.
While a raft of predictions about implications to workplace DEI initiatives came out at that time, the only thing to do was to hurry up and wait. Now that we’re about one year out from that ruling, and have more data to draw on, let’s recap where things stand, what’s still at stake, why we can’t give up on DEI commitments, and what best practices workplaces should ensure they’re adopting.
Key Updates Impacting Workplace DEI Efforts
A few banner legal decisions infuse greater complexity and nuance for workplace DEI in the wake of the June 2023 SCOTUS ruling, including:
Muldrow vs City of St Louis: In April 2024, the Supreme Court handed down one of its most consequential decisions for corporate DEI initiatives following the affirmative action ruling. The court found that employee plaintiffs facing “some harm” from discriminatory employer conditions could sue. For a while, legal commentators weren’t sure if the court would rule that no harm would be required, which would have significantly deviated from the prior requirement of significant harm. As law firm Davis, Wright, and Tremaine share, a “decision eliminating the harm requirement would have provided an easy avenue for anti-DEI activists to challenge programs that seek to advance workplace equity.” However, it’s important to note that this ruling paves the way for both claims of more discrimination and reverse discrimination by employees.
11th Circuit Ruling on the Freedom Fund: On June 3rd, a federal appeals court struck down Fearless Fund’s grants for black women business owners. This 11th Circuit ruling was one of the first more direct answers to the question if the equivalent of race-conscious admissions in corporate contexts could continue following the affirmative action decision. The federal appeals court temporarily struck down Fearless Fund’s program, indicating that the identity-based restrictions on who could seek grants through the organization amounted to discriminatory treatment. We still have to wait to see if this case ends up in SCOTUS and if so, what ultimate word they will provide. In the meantime, this case could enhance legal exposure to exclusive workplace programming, not only for BIPOC folks but also for other marginalized identity groups (women, LGBTQ+, etc).
Why We Can’t Give Up
So where do workplaces go from here? How do they make sense of these recent legal decisions? And how do these recent decisions square against recent data?
Across white-collar industries, we continue to face a stark reality– representation for historically marginalized talent continues to lag behind groups who have traditionally dominated in this space. For instance, in the law itself, women of color only made up 5% of legal partners in 2023. And tech, the industry targeted by the Freedom Fund’s recent appellate ruling, is no exception. A recent report by the University of Massachusetts found similarly low levels of representation at the 177 largest tech companies in Silicon Valley, with only 3% of the workforce identifying as Black or Latina women (1.8% Black and 2.4% Latina).
And, for the first time in a quarter of a century, the Equal Employment Opportunity Commission (EEOC) released new guidance on workplace harassment. While these are recommendations, rather than directives, they provide definitions and examples of various forms of identity-based harassment that can be enforced, including gender identity, and for the first time, intersectional discrimination based on multiple marginalized identities, such as race and gender. Taken together, this guidance suggests that employers may be subject to heightened legal exposure for potential liability if they do not prevent discrimination.
Pivoting with Purpose | 3 Tips for the Second Half of 2024
One thing’s clear from the year following the SCOTUS affirmative action decision– while employers can’t ignore enhanced legal exposure for DEI initiatives, they also can’t stand by allowing discriminatory practices either. In this increasingly complex landscape, we recommend three tips to pivot with purpose in the second half of the year:
Ensure Inclusion Over Exclusion. At this juncture, employers must anchor DEI programming around inclusion, meaning that all team members should have access and opportunity to participate.
Ensure Leaders Rely on Obecjtive Feedback. On the ground, we’re seeing more and more clients ask about how to upskill their leaders in giving objective and relevant feedback. More than ever, organizations should especially ensure that any decisions about personnel evaluations and outcomes have clearly articulated reasons. Check out our recent learning lab series on feedback here.
Continue to Play the Long Game. As we shared last year when the decision first came out, this ever-complex legal landscape requires patience and ongoing monitoring. Organizations continue to invest in DEI, not only because it’s the right thing to do but also because laws still require proactive management of legal risks associated with identity-based discrimination. It’s critical to build people processes and cultures that are responsive to the diversity of the workforce today and tomorrow.
We will continue to pivot with purpose. Reach out if you’d like to learn more about working together.
Resources:
https://apnews.com/article/fearless-fund-dei-backlash-dab43ae98158a0bd6175fa64fa79bcfd
https://www.umass.edu/employmentequity/sites/default/files/CEE_Diversity+in+Silicon+Valley+Tech.pdf
https://www.modelexpand.com/blog/-affirmative-action-ruling-what-it-means
About ModelExpand
ModelExpand is a strategic workplace advisory firm that helps companies put their ideals into action. We partner with organizations to implement, operationalize, and scale their Culture and People initiatives in a way that improves performance across the organization. The ModelExpand team is composed of people from all walks of life. The diversity of the team’s lived experiences, robust industry knowledge, and research acumen fuel ModelExpand’s innovative and tailored solutions. ModelExpand’s work has been featured in Harvard Business Review, Forbes and CultureAmp.
