Maintaining DEI Momentum: Best Practices for Businesses Post-Supreme Court

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July 28, 2023

The US Supreme Court has recently ruled that race can no longer be considered as a factor in university admissions. The landmark ruling upends decades-old US policies on so-called affirmative action, also known as positive discrimination. The ruling means that admissions programs like those at the two universities at the center of the case, Harvard University and the University of North Carolina, are no longer permitted. While the decision will impact admissions policies that have historically benefited Black and Latino students, the ruling still allows colleges and universities to consider an applicant’s discussion of how race has affected their life as long as it is “concretely tied” to a “quality of character or unique ability” that the applicant can bring to the school.

 

It’s important to note that the Supreme Court’s decision on affirmative action has no legal effect on workplace law. Hiring and firing decisions cannot be impacted by protected traits, period. However, experts who work and study workplace diversity, equity, and inclusion (DEI) efforts are worried about what the court’s decision on affirmative action will mean for these initiatives as conservative groups take their fight against diversity efforts even further.

Legal experts note that the Supreme Court’s decision only impacted affirmative action in higher-education admissions, not affirmative action in private workplaces. The court held that affirmative action violates the Equal Protection Clause in the US Constitution (and, by extension, Title VI of the Civil Rights Act of 1964), but did not hold that affirmative action violates Title VII of the Civil Rights Act of 1964—the main statute governing the employment relationship.

So, don’t shrink back from doing the good work your organization is doing! Most DEI workplace initiatives are not affirmative action in the sense addressed in the decision—because they do not involve employers considering race or other legally protected characteristics when making hiring or promotion decisions.  The predominant DEI work centers on:

  • maximizing employee potential and their contribution to the workplace and integrating that into organizational business goals and strategic plans.
  • a strengths-based approach to organizational change.
  • driving business outcomes and organizational culture voluntarily.
  • a business case marked by quantitative and qualitative transformation.
  • a proactive process of change, based on key performance indicators, representation, and aspirations for equity.
  • including a wider range of diversity dimensions, including cognitive styles, cultural styles, beliefs, and traditions.
  • making better quality decisions due to diverse working teams; connecting with diverse customers; acknowledging that a diverse workforce is a rich source of innovations.
  • valuing and managing diversity that is achieved through awareness, education, and positive recognition of the qualities, experiences, and work styles that make individuals unique within the workplace.
  • including and positively affecting everyone, regardless of identity.

So, what should businesses focus on now?

According to an article on Harvard Business Review, companies can and should recommit to DEI in the wake of the Supreme Court decision1.  Companies should continue to set clear, data-driven DEI goals that aim to increase the diversity of underrepresented groups in their organization, improve the equity of their policies and procedures and drive the inclusion of their culture or belonging. Companies should also fund and staff programs that promote their DEI goals to set them up for success2.

Some experts believe that the ruling may expose corporations to potential legal challenges and prompt them to reconsider their DEI initiatives. As the impact of the decision unfolds, companies will need to navigate the changing legal landscape to ensure compliance with the law while addressing diversity, equity, and inclusion in their workforce3.

According to an article on BSR, business leaders that care about hiring and retaining diverse and exceptional talent, developing and delivering innovative products and services, and attracting a diversified consumer base should underscore their company’s long-term commitment to diversity. They should also commit to corporate accountability initiatives that focus on racial equity and DEI in the workplace. Companies should assess their hiring data to identify barriers to diverse talent acquisition and surface factors that may support the long-term hiring of diverse workers4. –

Integrity, respect, honesty concept – shining light bulbs – 3D illustration

What DEI focus should businesses have after the Supreme Court decision on affirmative action?

An article on Perkins Coie suggests that employers should assess their current policies and practices related to diversity, equity, and inclusion (DEI) efforts. Employers should also consider whether their policies are tailored to meet the manifest imbalances test5.

What else can your company do to keep your DEI efforts strong in this constantly changing legal environment?

  1. Be sure your hiring and promotion decisions are based on merit considerations versus Title VII protected identities (race, color, religion, sex, and national origin).
  2. Keep investing in pipeline programs to diversify your talent pools.
  3. Continue your targeted outreach to colleges with diverse student populations, like HBCUs, HSIs, and NASNTIs.
  4. Audit your recruitment, performance evaluation, compensation, and promotion policies and procedures to irradicate implicit bias.
  5. Establish employee resource groups to build a more inclusive environment for underrepresented people groups.
  6. Educate and train staff on unbiased and inclusive hiring and promotion practices.
  7. Launch mentorship, reverse mentorship and sponsorship programs.
  8. Expand allyship by opening programs to people of any identity concerned about various DEI topics, not just underrepresented people groups.
  9. Focus on goals that eliminate workplace biases, barriers, and inequities versus goals that concentrate on specific demographic and protected class outcomes.
  10. Deemphasize strict numerical metrics and targets.
  11. Attend to building a culture of diversity, equity, inclusion, access, and belonging that benefits everyone, including members of majority or dominant groups.

Help is available right now!

These strategies require the knowledge and expertise to execute and make lasting, impactful change.  The People Company Consulting Group Inclusion Institute’s Certificate Programs and Certified Diversity Practitioner Program can get you and your team upskilled and ready to lead the change you need to make in your organization.  Join our August cohort of certified diversity practitioner participants and learn the advantages of LGBTQIA+ Workplace Inclusion at our September 13th certificate program.

 

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Learn more:

  1. hbr.org
  2. practicalesg.com
  3. thestockdork.com
  4. bsr.org
  5. perkinscoie.com

 

 

Navigating the DEI Legal Landscape

Navigating the Challenging Landscape: Businesses Facing Controversial Legislation Impacting ALAANA and MOGII Communities

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June 28, 2023

*Acknowledging the deficiency inherent in umbrella terms and labels, the terms ALAANA (African, Latinx, Arab, Asian, or Native American) versus BIPOC (Black, Indigenous, and People of Color) and MOGII (Marginalized Orientations, Gender Identities, and Intersex) versus LGBTQIA+ (Lesbian, Gay, Bisexual, Transgender, Queer or Questioning, Intersex, Asexual and the plus, which allows expansion to include more identities) are used, despite acknowledging those two umbrella terms also do not cover every marginalized identity. 

In the ever-evolving landscape of business, where the intersection of commerce and social progress often collide, there emerges a complex web of challenges that confront companies striving for inclusion and equity. Lately, a wave of legislative measures at the state level has given rise to concerns among businesses, particularly those advocating for the rights of people from diverse, underrepresented, and marginalized communities.

These laws, seen by many as detrimental to the very fabric of diversity and social progress, pose formidable hurdles for businesses operating in affected regions. Here, we delve into the intricate difficulties faced by these businesses as they grapple with the implications of such controversial legislation.

At the heart of these legislative measures lies a troubling threat to the essence of inclusion. In states where discriminatory laws have been enacted, companies that have embraced cultivating a diverse workforce and fostering an inclusive environments now find themselves at odds with the values they hold dear. These laws, by their very nature, impede the hiring, retention, and promotion of ALAANA and MOGII individuals, perpetuating the very inequalities many have fought so hard to overcome. The result? A stifling of innovation and an erosion of the foundations upon which successful organizations are built.

Yet, the challenges extend beyond the realm of ethics and social responsibility, permeating the legal and financial landscape. Companies standing firmly in support of inclusive policies and employee rights may face legal battles and lawsuits, as they dare to prioritize their values above discriminatory legislation. The uncertainty that shrouds such legal battles can cast a long shadow over a company’s reputation and financial stability, deterring potential investors, partners, and customers who place a premium on social responsibility.

Moreover, the ripple effects of these contentious laws can be felt acutely in a company’s bottom line. The association of businesses with regions where such legislation holds sway often invites backlash in the form of boycotts and consumer-led campaigns. The consequences are all too real—a decline in sales, a tarnished brand image, and ultimately, reduced profitability. Navigating the treacherous waters of social activism, legislation, and consumer sentiment becomes an art form that businesses must master to mitigate the risks they face.

But the impact of controversial legislation stretches beyond balance sheets and shareholder value. It affects the very well-being and job satisfaction of employees, particularly those from marginalized communities. In states where discriminatory laws prevail, the morale and mental health of MOGII and ALAANA employees are inevitably compromised, as they grapple with increased vulnerability and exclusion. The toll is unmistakable—higher turnover rates and a challenging environment for attracting and retaining top talent.

Businesses that prioritize the well-being and inclusion of their workforce often find themselves walking a precarious tightrope, caught between the legal landscape and the need to support and retain their employees. The task of striking a delicate balance between compliance with local laws and the principles that underpin a fair and inclusive workplace poses a significant challenge.

Indeed, these legislative battles thrust upon businesses can impede their efforts toward increased social responsibility and ethical duty. Many companies have invested heavily in corporate social responsibility initiatives aimed at cultivating diversity, equity, and inclusion. However, when confronted with the harsh reality of operating in states that harbor discriminatory legislation, businesses face ethical dilemmas. They must make the difficult choice of either upholding their principles and facing potential backlash or adapting their practices to align with local laws, potentially alienating employees and customers who hold the value of inclusion dear. It is a tightrope walk that tests the values and integrity of businesses to their core.

Yet, in the face of these challenges, a glimmer of hope emerges—a beacon of collective action and advocacy. Many businesses are rising to the occasion, embracing the role of advocates and lobbyists, leveraging their economic influence and industry clout to exert pressure on lawmakers. Through alliances, participation in legal battles, and financial support, companies are actively working to protect the rights of marginalized communities and foster inclusive environments.

It is in this spirit that businesses must chart their course forward, armed with a proactive stance in driving change. By collaborating with organizations, employees, consumers, and lawmakers alike, businesses can foster environments that prioritize diversity, equity, and inclusion. Together, organizations can strive for a future where legislation not only supports the rights and well-being of all individuals, regardless of their diverse identities and lived experiences but actively champions the progress they seek to achieve.

In the challenging landscape ahead, businesses must navigate myriad hurdles—threats to inclusion and belonging, legal and financial implications, employee well-being, ethical dilemmas, and the pressing need for advocacy. It is only by threading this intricate needle with care and conviction that we can pave the way toward a more just and equitable society.

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Leadership Response During Troubling Times

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June 6, 2020

I am occasionally asked by organizational leaders, “What should I do?” in response to societal issues involving bias and racism. Questions like, “What should I say?” or “How can I help?” come from compassionate well-meaning leaders and colleagues who sincerely want to know what to do. Read more

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Becoming a More Inclusive Leader

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Recently, I trained for a group of leaders on unconscious bias and inclusive leadership. As we were discussing the impact of exclusion in work environments, particularly the impact of microaggressions, a leader commented, “Sometimes, I don’t have the time to worry about how I say something to a team member. Sometimes, they are wrong, and their ideas aren’t very good. Sometimes people are too sensitive. Where does it end? I worry that everything I say can be construed as offensive or microaggressive. How far is too far with all of this sensitivity and inclusion stuff?” Read more

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Ouch! Workplace Microaggression Hurts

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According to Derald Wing Sue, PhD, of Columbia University, “Microaggressions are the everyday verbal, nonverbal, and environmental slights, snubs, or insults, whether intentional or unintentional, which communicate hostile, derogatory, or negative messages to target persons based solely upon their marginalized group membership.”

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Making Room for One More, A Simple Act of Micro-Inclusion

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Organizations have learned that workforce diversity affords a competitive advantage when selling to diverse consumers. Businesses recognize that diversity in the workforce leads to more highly engaged teams and provides a better arena for innovation to occur. Companies also know that diversity alone isn’t the answer and that lasting workforce diversity doesn’t happen without creating environments where multiple cultures, ethnicities, genders, and abilities are welcomed, included, and respected.

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