Yes, The SCOTUS Ruling Banning Affirmative Action At The College Level Will Likely Affect Employers

Federal law prohibits employers from considering race in their hiring decisions.

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination against protected groups as to the terms, conditions, and privileges of employment, including hiring.

Now, the Supreme Court of the United States (SCOTUS) determined, after decades of ruling otherwise, that colleges and universities may not consider race as a factor in their admissions decisions.

The net effect of the ruling for higher education means these institutions may not use race as part of their diversity, equity, and inclusivity (DEI) initiatives. The court ruled 6-3 that Harvard University and the University of North Carolina’s admissions policies taking race into account are unconstitutional.

How does this affect businesses and DEI initiatives?

It doesn’t, one might think.

Ah, but it might. And probably will.

As of 2021, this study showed that more than 80% of private employers boasted some type of DEI initiative. The benefits of DEI programs in the workplace have been long studied, and results showed, quite clearly, that more diverse workplaces garner increased profits and employee morale. 

In 2022, Gartner reported that 75% of organizations with inclusive front-line decision making teams would meet or beat their financial targets.

In 2019, I wrote about the almost 200 Generals Counsel signed an open letter to large law firms, complaining about partnership intakes that “remain largely male and largely white” and saying that their companies will divert legal spend to firms that commit to diversity and inclusion.

In fact, according to the Bureau of Labor Statistics, White workers represented the majority in all occupational groups in 2022, with lawyers being one of the least diverse professions: 9% of workers were Black, 5% Asian and 11% Hispanic or Latino. In contrast, 84% were White.

Implicit Bias

Implicit or unconscious bias has no place at work. Yet it is prevalent.

Implicit biases, are unintentional and unconscious judgements made based on pervasive stereotypes.

It is the natural human process of categorizing “like objects” together. Implicit bias studies have shown that most people show a strong preference for white people as opposed to Black people.

Determining that race will play no part in admissions allows universities to ignore implicit bias.

Is that realistic? Some SCOTUS justices think not. Indeed, the SCOTUS decision was not unanimous. For example, Justice Ketanji Brown Jackson wrote, “deeming race irrelevant in law does not make it so in life.”

So how might this translate in a workplace?

Employer Considerations

Look, if the SCOTUS ruling is limited to college admissions, maybe there will be no direct impact on employer decisions.

But I think that’s naïve. One law professor told The Washington Post here that he would recommend that companies stop using the word “diversity” and the acronym “DEI” to label their initiatives. So, the Chief Diversity Officer would become the Chief Title VII Officer.“

Will employers, fearful of lawsuits based on this ruling, follow suit and scrap their DEI initiatives?

We’ll have to wait and see.

The implications of the decision may in fact reverberate as less Black and brown students graduate from college and become eligible for jobs in the private sector, which chokes the diversity of employees at the inception.

The impact on the diversity of our future workforce remains to be seen.