How the Supreme Court's decision on affirmative action will impact employers

While many employers are working to strengthen their DEI programs and build more inclusive benefits, another ruling from the Supreme Court could hurt their progress, if not render them obsolete.

The Students for Fair Admissions or SFFA, a nonprofit group against race playing a role in college admissions, sued both Harvard and the University of North Carolina, calling their race-conscious admissions programs unconstitutional. The Supreme Court will make the final call, but given that the conservative justices, who hold a majority of six to three in the court, have already expressed unfavorable views towards affirmative action, the ruling seems more imminent than debatable. If the Supreme Court rules against the universities, then it will overturn a 40-year-long precedent.

Affirmative action by definition is a program or policy that works to improve the employment or educational opportunities for women and members of minority groups. Notably, white women have benefited the most from affirmative action in higher education, more than closing the college admissions gap with their male peers. 

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While this case is focused on the university level, employers should be prepared for the ruling to have a far wider impact, says Amy Kim, president of PowerToFly, a talent hiring and management platform. 

"While the ruling is unlikely to apply directly to workplaces, many of the thought processes and basic legal principles are the same," says Kim. "As such, if the court rules against race-conscious admissions in education, similar decisions in employment cases may not be far behind. Changes will likely happen first for federal workplaces and the contractors that work for them."

Kim points out that private institutions like Harvard and UNC are governed by Title VI of the Civil Rights Act, which outlaws discrimination in programs that receive federal funding; private-sector workplaces are governed by Title VII, which protects against discrimination at work.

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But if reverse racism — the perception that a dominant or privileged group like white Americans are being systematically discriminated against — is validated here, then lawsuits against diverse hiring practices are likely to follow, underlines Krissy Katzenstein, a partner in the employment and compensation practice group at law firm Baker McKenzie.

"Many of us anticipate that the ruling will have significant practical implications for employers because it will inform how much scrutiny they will face with respect to their diversity, equity and inclusion programs," says Katzenstein. "It will also likely feed into what we're seeing by way of an uptick in reverse discrimination cases."

While some employers may take this as a sign to dial down their diversity and inclusion efforts, Kim believes it should mean the opposite. She advises employers to exercise caution and make sure they are not using individual race or quotas as a determining factor in employment decisions. On the other hand, employers can use this ruling as a chance to reevaluate their DEI programs and take their efforts beyond hiring.

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"Employers can respond to the ruling proactively by focusing their initiatives on building relationships with diverse talent and supporting them through mentorship programs and other initiatives that are not directly related to hiring," says Kim. "Policies focused on mentorship and outreach to specific diverse pools should not be impacted by the ruling."

That being said, Kim doesn't want employers to give up on diverse hiring practices. She advises HR and hiring managers to expand their recruitment channels so underrepresented candidates can be in the hiring pool to begin with. From there, she reminds anyone hiring to review their job descriptions and requirements to ensure there aren't unnecessary barriers to the position. If employers really want to take it a step further, they should also provide training to recruiters and interviewers on unconscious bias, inclusive hiring practices and effective evaluation techniques, notes Kim.

And although race shouldn't be monitored as part of the hiring decisions, employers can still track the diversity of their employees and leaders across all intersections.

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"Regularly assess and track diversity metrics within the organization," says Kim. "Analyze hiring data, retention rates, and promotions to identify areas for improvement."

And of course, employers should continue to cultivate a company culture that attracts and retains diverse talent through benefits, flexible work arrangements, mentorship programs and employee resource groups, Kim explains. 

Katzenstein agrees that ultimately employers have to rethink how they approach DEI and why — it has to mean more than a number.

"The ruling will certainly be important, but regardless, employers should be taking a holistic look at their DEI programs and identify any vulnerabilities," says Katzenstein. "Make it clear your initiatives are intended to foster great diversity, equity and inclusion, and not intended to encourage or require decisions based on certain characteristics."