Hiring for Diversity? 10 Takeaways From the Supreme Court’s Affirmative-Action Ruling
The good news for diversity advocates is this: The Supreme Court’s ruling striking down race-conscious affirmative action in higher education has no direct bearing on their efforts in the nonprofit workplace, according to legal and human-relations experts as well as the federal government’s anti-discrimination agency.
But that’s small comfort for many worried about ripple effects they believe could slow the movement to make the field’s staff and leadership more diverse. The decision is expected to lead to heightened scrutiny of diversity hiring programs, if not legal attacks. There’s also concern that the debate over the past year may have sullied, for some, the notion that diversity itself is a worthy aspiration.
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The good news for diversity advocates is this: The Supreme Court’s ruling striking down race-conscious affirmative action in higher education has no direct bearing on their efforts in the nonprofit workplace, according to legal and human-relations experts as well as the federal government’s antidiscrimination agency.
But that’s small comfort for many worried about ripple effects they believe could slow the movement to make the field’s staff and leadership more diverse. The decision is expected to lead to heightened scrutiny of diversity hiring programs, if not legal attacks. There’s also concern that the debate over the past year may sully, for some, the notion that diversity itself is a worthy aspiration.
“What I’m hearing is a lot of concern, disappointment, anger, and frustration,” said Tim Delaney, head of the National Council of Nonprofits.
“I wouldn’t be surprised if this was an initial shot to challenge a lot of other things, including diversity programs and affirmative action within both for-profit and not-for-profit organizations,” said James Page, global chief diversity, equity, and inclusion officer for the Nature Conservancy.
Efforts to improve the racial, ethnic, and gender diversity of charities are decades old but took on new urgency after nationwide protests that followed the police murder of George Floyd in 2020. Three-quarters of organizations prioritize racial diversity as they seek to attract and retain talent, according to a 2022 survey by the consulting firm Nonprofit HR.
Experts and nonprofit leaders are still analyzing the Supreme Court’s 6-3 ruling — it runs 237 pages, with the majority opinion, three concurring opinions, and two dissenting opinions — to determine what might happen next. Here are several takeaways, starting with the most important one:
The ruling, which was focused solely on admissions in higher education, does not address employer hiring or workplace diversity, equity, and inclusion programs. Charlotte Burrows — chair of the Equal Opportunity Commission, the federal agency that enforces antidiscrimination laws — pointedly said after the decision that it “does not address employer efforts to foster diverse and inclusive work forces or to engage the talents of all qualified workers, regardless of their background.”
Nonprofit leaders need to take a breath, said Alvin Tillery, who directs Northwestern University’s Center for the Study of Diversity and Democracy. “No one hires in the real world in the way that 100 elite colleges explicitly consider race and affirmative action,” says Tillery, who advises businesses and nonprofits.
Indeed, some of the college-admissions practices banned by the Supreme Court’s ruling — including using race as a plus factor in selection decisions — were already illegal in hiring under Title VII of the Civil Rights Act, which prohibits employment discrimination based on race, color, religion, sex, and national origin.
Under Title VII, race may not be a factor in the selection of individuals to hire, promote, or terminate. But employers may consider race in outreach, recruitment, and workplace-culture programs, says lawyer Julia Judish, an employment-law specialist. Judish noted that affirmative-action regulations that apply to nonprofits that are government contractors prohibit discrimination and quotas but also mandate that government contractors analyze hiring, compensation, and termination decisions by race, ethnicity, and gender to identify and address any potentially discriminatory patterns.
“You don’t have to be race-blind if you’re looking at your work force and trying to see whether there are impediments to equal employment opportunity,” said Judish, special counsel in the nonprofit practice of Pillsbury Winthrop Shaw Pittman.
Michael McAfee, head of PolicyLink, which promotes economic and social equity, says nothing in the affirmative-action ruling should deter leaders truly committed to making their organizations equitable and inclusive. “Justice and fairness don’t need legal authorization,” he said. “I didn’t need affirmative action to make PolicyLink diverse. I didn’t need a law to tell me to pay people equitably.”
But … some believe the decision could lay the groundwork for legal challenges. Although the court’s ruling covered only higher education, some scholars and affirmative-action critics note that Justice Neil Gorsuch, in a concurrence with the majority opinion, argued that the decision’s ban on considering racial diversity should be applied to any employer.
The court’s previous ruling that race-based affirmative action was lawful in higher education — its 2003 decision in the now-overturned Grutter v. Bollinger — was interpreted by many institutions as applicable in areas beyond higher education, according to Dan Morenoff, executive director of the American Civil Rights Project, a public-interest legal group dedicated to protecting individual rights. That means organizations may be unlawfully using race as a determinant in employment practices, Morenoff says.
“There are an awful lot of programs that have been adopted and explained at nonprofits and for-profits as advancing the business case for diversity,” which is irrelevant under the law, he says.
Workplace affinity groups are expected to draw scrutiny. Also known as employee resource groups, these are sometimes organized based on racial, ethnic, or gender identity. “I can almost guarantee that someone will sue and challenge employers who encourage employees to classify by race,” Morenoff says. “I don’t know whether that litigation will be meritorious; that will turn on the facts of the case.”
Judish, the employment-law expert, says such groups are lawful if they are not exclusionary; under Title VII, an employer-sponsored affinity group for Black employees, for instance, shouldn’t bar non-Black workers from participating. It’s problematic if an employer runs a program open only to one racial group. A seminar on management skills that excludes white employees, for example, “is inviting a lawsuit,” she says.
Critics could take aim at internships, too. Judish says race may not be used as a determining factor in the selection of candidates for a paid internship, but organizations may recruit individuals from underrepresented groups for positions that are open to all.
Whether and how organizations can lawfully consider race in selecting board members is not fully settled. That’s according to Judish. She says Title VII’s prohibition of the use of race in employment-selection decisions doesn’t apply to volunteers, including uncompensated board members. A federal anti-race-discrimination statute does cover the making and enforcing of contracts, which could extend to contractual arrangements with volunteer board members.
It’s unclear whether critics of affirmative action will aim legal challenges at nonprofits. Corporate America appears to be the first target. Even before the court’s ruling, America First Legal — led by Stephen Miller, a former White House adviser in the Trump administration — had filed federal civil-rights complaints against major businesses for their diversity hiring programs. “Brands across America are hiring people based solely on immutable characteristics, like race or sex, rather than qualifications or abilities,” the group claimed.
Morenoff says there are any number of individuals and entities — workers, attorneys general, the federal Equal Employment Opportunity Commission — that might now be inclined to look closely for discrimination within any type of diversity effort. “If an enterprising plaintiff’s lawyer is looking for a place to bring a suit, they may be more interested in suing a billion-dollar corporation than a local food pantry,” he says. “But there are a lot of plaintiff’s lawyers. And maybe both will happen.”
The ruling gave the goal of diversity a black eye. Writing for the majority, Chief Justice John Roberts described diversity as fuzzy and vague. He said Harvard and the University of North Carolina, the plaintiffs in the two cases before the court, had failed to provide “measurable” objectives and a “specific end point” for their affirmative-action programs.
During oral arguments, Justice Clarence Thomas said, “I’ve heard the word ‘diversity’ quite a few times, and I don’t have a clue what it means. It seems to mean everything for everyone.”
Such criticism of diversity could undercut inclusive hiring efforts. Donors or trustees who grudgingly accepted diversity efforts might feel emboldened by the court’s decision and rhetoric. “Will they bring those concerns into the board room and force an organization to retrench? I don’t know; it’s too early to tell,” said Vincent Robinson, founder of the 360 Group, an executive-search firm.
“That’s certainly a danger,” said Delaney of the National Council of Nonprofits.
Groups that have been paying lip service to equity and inclusion since George Floyd’s murder could use the ruling as an excuse to stand down, said Tory Clarke, a co-founder of Bridge Partners, an executive-search firm that specializes in inclusive and equitable recruitment and hiring. “If they didn’t really mean it, this is their ‘get out jail free’ card.”
Framing diversity goals in terms of racial equity may be helpful. Organizations should ensure their programs are clearly outlined as antidiscrimination efforts intended to keep them in compliance with Title VII provisions, says Tillery, of Northwestern University’s Center for the Study of Diversity and Democracy. “The ‘why’ is no longer diversity,” he says. “It’s that we’re making sure that we’re not perpetuating bias in our system.”
Any retrenchment on workplace and hiring programs may face resistance, including from staff. The decision “feels like an anachronism to me,” Robinson said, arguing that most of America has “moved on.”
“DEI makes people happier and actually drives down discrimination complaints and lawsuits,” Tillery says. To reverse direction, he adds, is to invite more lawsuits from women, people of color, and the LGBTQ community.