How Your Company Can Prioritize DEI After the US Supreme Court Affirmative Action Ruling

Months after the June 2023 US Supreme Court ruling on the constitutionality of race-based affirmative action in university and college admissions, companies are still struggling with what this means for corporate diversity practices. Catalyst hosted a webinar with two DEI experts—Josetta Jones, Chief Diversity and Inclusion Officer at Chevron, and David Glasgow, Executive Director, Meltzer Center for Diversity, Inclusion, and Belonging at NYU School of Law. We wanted to know: How will this decision affect the DEI initiatives of corporate workplaces? What must companies do to ensure their DEI initiatives are protected and sustained?

We continue the conversation with questions submitted by webinar participants.

How might this decision impact a company’s ability to collect, track, and use race/ethnicity when analyzing talent data for systemic inequalities? 

Josetta Jones: Although there hasn’t been a decision directed at corporations, what we can say is that advancing diversity and inclusion initiatives aligns with the core values of The Chevron Way and our goal to improve lives, create opportunity, and power the world forward. We’re committed to expanding the diversity of our workforce and promoting greater inclusion to deliver ever-cleaner energy to the world.

David Glasgow: I don’t see a problem with collecting and tracking data; in fact, some data collection is necessary for reporting purposes, such as for the EEO-1 Report that many organizations are required to submit to the Equal Employment Opportunity Commission. What is prohibited is using data to make decisions that involve discrimination on the basis of a protected category, such as race. For example, if you collect data showing that certain racial or ethnic groups are lagging in promotion rates, it would be fine to use that information to improve your promotion processes by ensuring that the criteria for advancement are clear, transparent, and merit-based, and that decision-makers are trained in how to mitigate implicit bias. On the other hand, if you use the data to create a leadership development program reserved only for certain racial or ethnic groups, that use would involve legal risk.

In the DEI industry, it is known that setting goals by gender and race is the best practice to move the needle toward representation for women and people of color. Should we still do this, or should we move away from this practice?

David Glasgow: This is a gray area, but I think there is a solid legal argument to distinguish between purely aspirational goals and impermissible discrimination on the basis of race or sex. For example, in an Eleventh Circuit Court of Appeals decision called Denney v. City of Albany (2001), the court noted that “[t]he setting of goals for minority hiring or promotion can be lawful,” especially where—as in that case—the employer also had a policy expressly stating that personnel decisions must be made without regard to factors such as race. Whether the current conservative Supreme Court would agree with that distinction is not clear, but there is at least a decent legal argument.

Goals become particularly risky when there are carrots and sticks attached to the goals that incentivize managers to make employment decisions based on race or sex—for example, when a company gives bumps in a performance evaluation process or financial bonuses to managers who achieve certain diversity goals. If you decide to continue using goals, I would suggest making sure they are described in broad aspirational terms and always accompanied by a commitment to making employment decisions (such as hiring and promotion) based on qualifications and merit alone.

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