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Recent Supreme Court Case Could Impact your Organization’s DEI Program

Recent Supreme Court Case Could Impact your Organization’s DEI Program

Diversity, equity, and inclusion (DEI) are essential for creating a successful and thriving workplace.

Syntrio prides itself on championing diversity, equity, (and perhaps most importantly), inclusive thought within workplaces of all sizes. For more than twenty years, Syntrio has been an advocate for those organizations seeking to take their corporate education programs beyond mandatory harassment training, and into a program focused on the improvement of corporate culture. As organizations move toward a culture of civility and respect in the workplace, we feel it is necessary to teach employees the value of inclusiveness of opinions from a wide variety of backgrounds (diversity).

In recent years, many organizations think they are becoming more diverse by attempting to make the “numbers work” in their recruiting. These companies often take action without regard to objective talent fit within an organization. Such deficient practices are often packaged in a program known as “diversity, equity and inclusion,” but do not use the key principles of DEI, which include providing equal employment opportunities to all individuals without regard to race, sex, religion, or any other legally protected class. Worse, such practices often put the organization at risk of a discrimination lawsuit.

Instead of focusing purely on percentages and numbers, by widening the pool of “awesomely talented individuals” your organization seeks to recruit, it invariably will attract a number of objectively talented individuals from all backgrounds and points of view that will also be cultural fits within your organization. There is a difference, and managing your program correctly and within the boundaries of the law can set apart those organizations championed for having a positive culture from those that find themselves on the wrong end of an “anti-woke” boycott campaign or the defendant in a reverse discrimination lawsuit.

Following College Admissions Case, Employers Must Look Carefully at their Practices

On June 29, 2023, the United States Supreme Court issued its opinion in Students for Fair Admissions v. President and Fellows of Harvard College. The Court in that case determined that it was illegal for colleges to use race as a factor in determining admissions, even when used for the purpose of achieving greater diversity within institutions at issue (Harvard and the University of North Carolina). The Court found that the admissions practices at colleges and universities who used race as a “determinative tip” at the final stages of the admissions process violated the Equal Protection Clause of the 14th Amendment to the United States Constitution, and was therefore an illegal practice.

The SCOTUS Decision Does Not Impact Employment . . . For Now

Under Title VII of the Civil Rights Act of 1964 and other federal and state anti-discrimination laws it is already illegal to use race (or any other protected class) as the reason for making an employment decision (either hiring or otherwise). But employers can still cast a wide net to diversify their applicant pool and take specific actions without violating any law. Some actions that can be taken in good faith (and within the boundaries of the law) include:

  • Promoting equal opportunity and achieving a workplace that is free from discrimination;
  • Ensuring recruitment opportunities for all qualified applicants;
  • Hiring the most qualified candidates while utilizing a fair and nondiscriminatory process;
  • Guaranteeing that opportunities for career development are available to all qualified employees.

Important to note, the recent decision has no direct bearing on the legality of affirmative action programs that United States Government contractors must create and follow. That said, the foundation of these programs, and the definition of affirmative action contained therein is consistent with non-discrimination and equal employment opportunity not with creating illegal quotas or overtly using race (or other protected characteristic) as the sole criteria for hiring or promotion. The recent decision shows the Court views the need for equal treatment of all protected categories in decision-making, and therefore employers must carefully look at their practices to ensure they do not run afoul of any equal employment opportunity law. Guidance from employment counsel is strongly recommended.

Diversity and DEI Programs are Still Essential Education

The recent court cases and state laws concerning DEI and other corporate education notwithstanding, we at Syntrio feel that (when done correctly) DEI education is a critical component of improving corporate culture. Given our value to including a diverse range of thought, we have no official opinion on such laws and practices, and only feel that is necessary to treat individuals from all backgrounds inclusively, and help institute equity practices to give everyone a fair shot at success. For these reasons, our DEI courseware focuses strongly on inclusiveness as a key tenet of cultural improvement, and we feel that when employees are tolerant of all people (no matter their history and background), recruiting practices improve, and organizations inherently become more diverse. The key principles of the recent decisions have merit within the overall framework of true DEI principles, so long as they are viewed through a politically “purple” lens.

It is necessary to foresee the possibility that all forms of “affirmative action” programs could soon be illegal, but remain steadfast in attempts to provide opportunities for individuals of all backgrounds by using methods of recruitment that do not focus on just characteristics that show up in protected class lists, but also non-tangible diverse perspectives that are not always apparent. This is the true nature of diversity, equity and inclusion. By casting the widest possible net it is most likely that you will find a group of employees that are respectful and tolerant of one another and come from a wide variety of backgrounds, including (but not limited to race and sex).

Employers Should Stay the Course

There are a number of practical steps that can be taken to ensure that your organization attracts and retains a diverse workforce, improves equity, and promotes a positive culture through inclusiveness. The practical steps that can be taken include the following:

  • Identify and address barriers to attracting, hiring and retaining diverse talent;
  • Focus on lawful, good faith efforts to expand diversity of qualified candidates for hiring, promotions, and other workplace decisions;
  • Employers should take and “inside out” approach when reviewing discrimination policies to ensure they adhere to local and national legislation, while focusing on lawful decision-making, DEI messaging, and DEI training;
  • Stay alert to state law requirements;
  • Provide training, including “unconscious bias” training (if not prohibited by the local jurisdiction);
  • Review existing DEI communications and take stock of existing DEI measures and processes before implementing new ones;
  • Measure inclusion efforts through surveys, assessments and data. Gain actionable insight into retention, promotion, and reputation.
  • Audit commonly publicized talent metrics such as underutilization by comparing what your workforce looks like (as opposed to what the data says it should look like);
  • Analyze compensation packages through pay equity audits and wage gap analyses.

Employees cannot be expected to understand your focus unless you assist. By taking the foregoing steps and providing lawful and appropriate training on the messages that is developed by experts in the fields of employment law and the DEI profession your organization will stay ahead of the curve in attracting and retaining the best talent, improve your organizational culture, and stay within the boundaries of the law.

Syntrio welcomes the opportunity to discuss our unique and vibrant DEI program with a member of your staff. We have carefully integrated positive aspects of DEI into our harassment and corporate culture education programs that will both enhance your culture and teach your workforce that DEI goes far beyond what is reported in the news. Our courses are never “woke” nor political, and are merely aimed at ensuring that members of your workforce are knowledgeable about the importance of civility, respect, tolerance, and the need for diverse perspectives in order to create the most productive possible work environment for everyone. We look forward to sharing our perspective and courseware with you soon!

About the Authors

Jonathan Gonzales, Senior Legal Counsel at Syntrio, is an experienced employment law attorney and thought leader. Tammy Bryant, VP, DEI Strategy at Syntrio, is a thought leader with a pioneering record of global workforce management experience. Together, they oversee Syntrio’s industry-leading Employment Law and Harassment, and Diversity, Equity and Inclusion training strategies and programs.

Syntrio is a Leader in Compliance Training, Hotline Reporting, and Human Resource Solutions

Our DEI team cares passionately about supporting how organizations understand bias and move into a more inclusive position for all their workforce needs.

It matters.

Tammy is a thought leader with a pioneering record of global workforce management experience. She has worked across diverse industries and specializes in developing large-scale human resources and diversity, equity, and inclusion program strategies while helping organizations create inclusive cultures that leverage all talent for a competitive advantage. Tammy has held very focused senior leadership roles while serving as a trusted advisor, coach, and facilitator.

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