SCOTUS Affirmative Action Ruling

How Does it Impact DEI Programs – Three Big Takeaways
In June, the U.S Supreme Court ruled to end affirmative action in college admissions. For many businesses with priority placed on diversity, equity and inclusion in their hiring, retention and advancement practices, the 6-3 ruling provided questions about the future of these initiatives.
 
Last week, MMAC held a panel discussion to clear up some of the uncertainties. Corry Joe Biddle, MMAC VP of Community Affairs, moderated the discussion which included experts in employment law, diverse recruitment and DEI practices.

Here were three big takeaways:

1. Just as government cannot mandate private enterprises offer DEI programming, they cannot prohibit these programs, either. 
Edgar Lin, Wisconsin Policy Advocate and Counsel at Protect Democracy, said the 1st Amendment applies not only individuals, but also private business in the United States.
 
“This right applies to businesses and it cannot be muzzled,” he said. “Government should not be in the business of telling private enterprises how to conduct their business internally, how to think or the culture they espouse.”
 
Rebecca Lopez, an employment and labor attorney at Godfrey & Kahn, said DEI programming, if applied correctly, is distinguishable from affirmative action.
 
“(The Equal Employment Opportunity Commission) has been very clear that diversity efforts are different than affirmative action in the private employer setting,” she said. “… The goal of and the merit of diversity, equity and inclusion is to ensure equal opportunity for all, is to ensure a workplace where everyone can bring their whole selves to work and thrive and do their best work. These efforts are designed to remove bias, to make sure everyone has an equal shot when applying.”
 
2. When hiring, avoiding bias starts before the first interview.
Morgan Phelps is the founder and CEO of Colorful Connections. In leading a diversity and equity recruiting and retention firm, she said she has developed strategies with legal compliance in mind.
 
One piece of advice she provides her clients is to avoid the prototype bias when writing job descriptions, reading resumes or conducting interviews. She said nine times out of 10, hiring managers aren’t intentionally trying to exclude anyone, but most will rely on their gut.
 
“It’s important to back up and think about what is truly needed to be successful in a role,” she said. “What are the attributes, the skills, the traits needed for someone to truly be successful.”

3. Now is a good time to take a look at your DEI programs.
While DEI programs differ legally from affirmative action, now is a good time to partner with your legal team, HR staff and DEI professionals to take a look at your initiatives.
 
“Now is a good opportunity to partner with your employment counsel, your DEI professionals who are trained in this area. They have studied in it. They have invested in it and they have lived experience they can contribute,” said Lopez. “The reason employment counsel is helpful is they can identify and distinguish between programs and activities that create more risk, and programs and activities that, in fact, comply with the law.”
 
She said activities that provide higher risk are quotas, set-asides based on a protected characteristics and adhering to historic hiring practices while continuing to see the same homogeneous group applying for available roles.  
 
ErickaJoy Daniels, Chief DEI Officer and Senior Vice President at Advocate Aurora Health, said organizations looking to build or enhance their DEI programs need to understand their readiness for it and make data-driven justifications. She added that building DEI programs should not be the sole responsibility of the DEI professionals in any one organization.
 
“Build together. DEI practitioners and leaders should not carry the weight and responsibility of building, because then it could be an imposition,” she said. “… We’re the observers. We’re the guiders. We’re the facilitators.”