Days after 13 Republican state attorneys general warned Fortune 100 leaders to end racial preferences in hiring practices, a group of their Democratic counterparts encouraged these same companies to continue pursuing diversity, equity and inclusion (DE&I) goals.
Twenty-one Democratic attorneys general, across 20 states and Washington, D.C., wrote in a July 19 letter that corporate DE&I programs remain legal, applauded employers for their diversity and inclusion efforts, and condemned the Republican letter’s “tone of intimidation.”
“We write to reassure you that corporate efforts to recruit diverse workforces and create inclusive work environments are legal and reduce corporate risk for claims of discrimination,” the letter read. “In fact, businesses should double-down on diversity-focused programs because there is still much more work to be done.”
The Democratic leaders explained that U.S. history is replete with instances of discrimination against underrepresented communities. They also noted that conservative Supreme Court Justices Clarence Thomas and Brett Kavanaugh have recognized these biases in past statements.
“Racial inequity is sadly both a problem from our nation’s distant past and, as the above justices recognize, a persistent problem today,” the Democrats’ letter stated. “We also recognize that, for private sector employers, diversity is an important, legitimate, and valid business interest, as well established by decades of research.”
The competing messages come in the wake of the Supreme Court’s overturning of affirmative action in college admissions. While the higher court’s decision does not directly apply to businesses, workplace experts say it could lead to potential challenges from opponents of corporate DE&I efforts.
After the court’s decision, U.S. Equal Employment Opportunity Commission Chair Charlotte A. Burrows reiterated that it “remains lawful for employers to implement diversity, equity, inclusion and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.”
Defenders of workplace DE&I programs have said that many diversity-related policies employers have adopted, such as statistical breakdowns of their workforce or setting hiring goals, are aspirational and nonbinding.
However, the Republican letter alleged that racial bias, such as explicit racial quotas, is common in hiring, recruiting, retention and promotion practices among Fortune 100 organizations. The Republican attorneys general also noted that race-based practices exist in federal contracting, which requires affirmative action policies, including:
- Racial preferences and quotas in selecting suppliers.
- Providing overt preferential treatment to customers on the basis of race.
- Pressuring contractors to adopt the company’s quotas and preferences.
Tennessee Attorney General Jonathan Skrmetti, who co-led the 13-state coalition with Kansas Attorney General Kris Kobach, said in a statement that the Supreme Court’s decision reinforces the illegality of racial quotas and race-based preferences in corporate America.
“Corporate America continues to have many avenues to help disadvantaged people and communities of all races without resorting to crude racial line-drawing,” he wrote.
Audit Your DE&I Policies
Recent research by SHRM found that nearly a third of HR professionals (31 percent) say they are unsure of what steps to take in response to the Supreme Court’s affirmative action ruling in terms of their current level of DE&I efforts and need to “assess the situation” before making decisions.
Annette Tyman, an attorney with Seyfarth, encouraged employers to review their DE&I efforts.
“Many employers are considering engaging in audits of their DEIB [diversity, equity, inclusion and belonging] policies and practices to ensure their programs are being implemented in a way that is consistent with existing law,” she said. “The polarizing viewpoints should not stop employers from ensuring they have equitable practices in the workplace.”
Stephen Paskoff, CEO of training company Employment Learning Innovations in Atlanta, said employers must examine their DE&I programs not only through legal and employment lenses but also through each organization’s core values, which can be a “North Star” for managing and balancing risks as well as making critical organizational decisions.
Paskoff, a former litigator for the U.S. Equal Employment Opportunity Commission, added that organizations cannot simply have rules in place. Employers need to continue to have specific processes for interviewing, hiring and other actions to avoid discrimination.
“The key to building a culture that gets the best results, doesn’t discriminate and gets the best talent requires not just content—such as policies and training—but commitment, communication, consequences and continuity,” he said.
Paskoff explained that inclusion should benefit everyone and the organization, “creating a space where people can speak up about differences and people are encouraged to talk about issues, opportunities and ideas, because that’s how companies get the best results and find out about problems.”