DEI by Deliberate Design

The recent Wall Street Journal article about the Supreme Court's affirmative action decision and its potential to chill corporate diversity efforts suggests that the decision has fueled an organized attack on corporate diversity efforts which, in turn, has caused some businesses to pause corporate DEI programming. This decision does not undermine the legal framework supporting DEI and certainly does not justify a retreat from it. With very few exceptions, Title VII and its state counterparts have always prohibited employers from making employment decisions based on characteristics the law protects.

The Supreme Court's decision concerning discrimination in educational admissions, including Justice Gorsuch's concurring opinion referencing Title VII's "materially identical language,” speaks to the manner of achieving diversity programs, but not the program goals. But the decision does offers an opportunity for a renewed focus on how to achieve diversity goals. The decision squarely rejected the use of quotas by educational institutions and suggested quotas are similarly unlawful in the employment context.

A resource that is allocated or rationed is a "quota". But here the concept of quotas must be distinguished from a corporate DEI mission that has the aim, goal and intention of producing a workforce that better represents the community it serves. For example, there is nothing inherently wrong or illegal about setting a goal to have a workforce that more closely aligns with the community it represents (i.e., a goal of 50% of previously unrepresented community members), and instituting appropriate programming to meet those goals (such as widening recruiting outlets and educating managers about broadening applicant pools and a firmer grasp of job functions). But if a business tries to accomplish a DEI goal by hiring (or other employment decision-making) through specific allocations, apportionments or numerical quotas based upon protected characteristics, with a few recognized exceptions for bona fide occupational qualifications, the law prohibits that approach -- a legal conclusion the Supreme Court decision did not change. The public discourse now seems to focus on how these legal developments are being misconstrued, perhaps even misused, in some cases in response to (or derived from) political partisanship.

So what does this mean for employers who wish to continue their commitment to inclusion but rightfully worry about attracting the wrong sort of legal attention? Important employment policies should be deployed both to support the employer's mission and also to meet legal requirements. Toward this end, DEI cannot be accomplished by fight or flight but rather by intentional design within an evolving judicial and political framework. But mission matters too. And design by deconstruction seems to be a pretty hefty response to the delicate task of meeting goals with societal benefits. So revisiting how diversity programs are designed seems a task worthy of corporate attention; but abandoning those goals out of fear of legal retribution misses the mark of corporate courage.