Why Leaders Should Maintain Commitments to DE&I Despite Political Uncertainty

Over the past year, our news feeds have grown saturated with stories about companies rolling back DEI initiatives, right-wing groups (and plenty of institutions) condemning antiracist language, and conservative lawmakers fighting against “woke” policies. The stories represent two phenomena in society right now, one cultural and one institutional. The cultural component is the cooling of public enthusiasm for racial and social justice that spread across the country in 2020 after the murder of George Floyd. The institutional component is the recent Supreme Court decision banning Affirmative Action. While the cultural pushback started happening long before SCOTUS dropped its gavel, both components have converged in a way that’s causing many leaders to pump the brakes on their companies’ DEI initiatives—or get rid of them entirely.

However, these cultural and institutional setbacks are just that: setbacks—expected, momentary obstacles to manage on the path toward progress. They’re not the end of the story. Not even the Supreme Court decision is the period at the end of a sentence; it’s more like a semi-colon. For leaders and organizations who’ve committed to DEI programs in recent years, there are plenty of reasons to maintain those commitments. The cultural component of the conversation is so multifaceted and rife with complexity that it warrants a separate newsletter unto itself. In this newsletter, I focus on the institutional component—the implication of the SCOTUS decision on Affirmative Action. Specifically, I discuss three reasons why the SCOTUS decision should not cause leaders to renege on their DEI commitments but why they should instead maintain strong commitments to the initiatives they’ve undertaken (or start new initiatives).

1. The problem still exists.

When the Supreme Court struck down Affirmative Action in colleges and universities, conservative legislators celebrated the end of race-conscious programs and what some considered to be a longstanding practice of reverse discrimination. This compels us to more closely examine the original purpose of Affirmative Action, and whether those reasons no longer apply today. 

The spirit of Affirmative Action was aimed at reducing historical wrongs that have produced race-based inequities. The Supreme Court didn’t strike down the legislation because racial inequities don’t exist in colleges and universities, much less society, anymore. The conservative majority ruled that the policy is unlawful because of their interpretation of what “fairness” means. In their view, fairness means treating everyone the same—i.e., equality. In the view of the liberal minority of the court (and myself), fairness means treating people differently but in a way that makes sense—i.e., equity. 

SCOTUS’s ruling had to do with equality vs. equity. The disparities persist. One only need observe the huge impact of racism on education, employment, healthcare, opportunity—every facet of life—for socially disadvantaged people of color in this country. We certainly don’t see equitable enough representation among students in higher education—though Affirmative Action was significantly helpful in this regard—and we certainly don’t have equitable representation among our elected officials and government. After all, the Supreme Court itself only just welcomed its first Black woman to the court. Organizations are no different; most come nowhere close to having truly diverse, equitable representation across their workforces and leadership teams.

Knowing that, how leaders should respond to the ruling as they decide what to do with DEI programs in their organization is not a question of whether or not racism has ceased to exist and the programs aren’t needed (it hasn’t; they are), but rather, are they committed to doing their part to eradicate it in their workplace and achieve a more equitable future?

Some leaders are truly committed and want to do their part. But not everyone is that way. I like to use a metaphor that puts people into three categories when it comes to social justice: dolphins, ostriches, and sharks.

Of course, these characterizations are not literal. However, they do help to illustrate important differences in people’s concern for others in their organizations and society in general: We like to believe everyone is a dolphin. When given a choice, everyone is a good person who cares about the good of others, right? In reality, approximately half of the population are dolphins. The other half are either indifferent to social justice issues or strongly opposed to them. 

If you’re a leader in the latter half, it may not be enough for you to know that the problem still exists and that you can do something within your organization to achieve progress. But you have to decide for yourself what your personal values around social and racial justice issues are. For leaders who truly care about these issues, it’s imperative that you stay the course with your DEI programs. They are important. They are necessary. And rolling them back now will only prolong efforts to achieve progress.

2. The SCOTUS decision is limited in scope and, to some extent, legitimacy.

Despite proclamations to the contrary, the decision itself is genuinely limited in the scope of its application. First, it specifically pertains to Title VI of the Civil Rights Act, which prohibits discrimination on the basis of race, color, or national origin under any program that receives federal funding. College admissions are governed by Title VI. Private employers, however, are not.

Private employers are governed by Title VII, enforced by the Equal Employment Opportunity Commission, and as the head of the EEOC has stated, “[The ruling] does not address employer efforts to foster diverse and inclusive workforces [...] 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.” 

Moreover, employees who feel that they are being discriminated against because of a DEI program or initiative need to show explicit proof that they have suffered an “adverse employment action,” such as being fired or denied job opportunities or promotions, and that such action was explicitly taken by the company because of the employee’s race or sex. As long as companies don’t use race or sex as the only factor in employment decisions, including hiring, firing, or promotions, then there is no legal basis against DEI initiatives at your company. (It’s possible it could in the future if the Supreme Court hears cases that have broader jurisdiction, but we’re not there yet.)

The legitimacy of many of the court’s recent decisions have also been called into question. Although all Supreme Court decisions are legally binding, people are asking whether its latest decisions reflect the current values of the U.S. population. Since the court’s earliest days, it has always overrepresented the White, male demographic in its members, and certainly its decisions have reflected that. While some of even those While male justices’ perspectives have become broader and more aware of the experiences and realities of Americans of color over the years, the court itself has only recently grown less White and less male. So, in demographic representation alone, it’s a body—albeit a very powerful body—whose validity as a representative voice of a very diverse nation can be easily questioned.

More recently, though, we’ve seen even more reason to question the validity of the court and its actions. In 2016, the Republican-led Senate, under the leadership of Mitch McConnell, blocked President Barack Obama’s nomination of Judge Merrick Garland to the Supreme Court by simply ignoring it and refusing to hold any appointment proceedings. It was a controversial, historic, and disreputable move that gave President Trump the ability to fill the court with three more conservative justices, despite the fact that it was President Obama’s right to fill the seat. So now, even though the majority of individuals in the United States lean toward liberal views, we have a court with a 6–3 supermajority espousing extremely conservative beliefs, writing decisions most people would disagree with. On top of that, we’ve seen numerous reports shedding light on the questionable ethics of certain justices who have accepted favors and significant monetary and material gifts from powerful political players. So, if the court doesn’t reflect the will of the people, as it’s purported to do, do its decisions hold the same moral weight? 

And if the ethics of its members—essentially, their judgment—cause doubt or concern, does the court maintain its legitimacy as the end-of-the-line judging body for our nation?

3. Your organization’s values can—and should—prevail.

At the end of the day, the question of whether or not to continue commitments to diversity, equity, and inclusion in your organization comes down to, in large part, your organization’s values. For leaders, it’s important to examine what those values are. And if you don’t think values should play a role in business, think again.

In 1996, Jim Collins and Jerry I. Porras published a now-classic article in Harvard Business Review titled, “Building Your Company’s Vision”. A vital part of a company’s vision and long-term success, they wrote, is its values: “Companies that enjoy enduring success have core values and a core purpose that remain fixed while their business strategies and practices endlessly adapt to a changing world.” According to their research, the stocks of companies like Hewlett-Packard, 3M, Johnson & Johnson, Procter & Gamble, Sony, and Nordstrom, which have all maintained strong values, had up to that point performed 12 times better than the rest of the market going back to 1925. 

But stock market success isn’t the driver of having core values; it’s a byproduct. Having core values is about putting a stake in the ground as to what’s important to the company. As then-CEO of Johnson & Johnson Ralph S. Johnson described it in the article, “The core values embodied in our credo might be a competitive advantage, but that is not why we have them. We have them because they define for us what we stand for, and we would hold them even if they became a competitive disadvantage in certain situations.” The core values have inherent value in guiding the company and its workforce and aligning its actions—no matter if that direction follows the cultural tide of the moment or not.

Think of Disney, whose core values are imagination and wholesomeness. Even if it became popular or profitable to produce racy adult films or graphic horror movies, the company wouldn’t do it because neither genre aligns with its values. Disney’s leaders have changed their business strategies over time, depending on the market and the cultural conversation, but they have not changed the company’s values, and the projects they produce reflect that.

This is a crucial point organizations need to remember. If your values align with creating a supportive and equitable environment for your workforce, valuing your employees and their many contributions, being a driving force for innovation, or building a better world in any capacity, then your values provide reasoning—and more than reasoning, a compass—for maintaining support for DEI initiatives throughout and despite the pendulum swings of the culture. 

Just like people, though, not all organizations’ values will line up with DE&I. If your organizations’ do, it will benefit you in the long run to stay true to them. People notice. Employees notice. Maintaining your values helps maintain an engaged workforce, and in an age where the social values bear increasing importance on people’s decisions about where to work, it’s actually vital for attracting and retaining strong talent too. Plenty of organizations don’t have core values, and they will blow in the wind as a result. Organizations that maintain their values in the face of changing tides will be able to chart their course and reach their destinations regardless of tumultuous waters around them.

Translating values into policy

How do you maintain your values and continue to support DEI in the face of societal pressures and alarming Supreme Court decisions? There is not a lot of hard data on what to do in these circumstances, as this is uncharted territory. However, a number of scholars have made recommendations and written great articles with well-thought-out suggestions (see below).

For example, law professor Kenji Yoshino recommends making several shifts in framing how we think about promoting DEI, including “lifting vs. leveling.” This involves shifting the official focus of the work from uplifting people who have been oppressed to leveling the playing field (which we know is not level) so that everyone has equal opportunity. The end result is the same: reducing the gap of opportunity.

He also talks about shifting from “cohorts to concerns.” This involves focusing activities on a common goal or interest rather than a group. For example, instead of hosting a retreat for people of color, you could organize a retreat around “people who value diversity.” This is likely to be an event that predominantly attracts people of color. Keep in mind that it is unlawful to use a formal “pretext” or proxy category for race, such as zip codes. However, building policies and activities around valid concerns, such as diversity, is perfectly legitimate.

Other shifts are from “numbers to narratives” and from “selecting to sourcing.” Organizations can emphasize personal stories in essays rather than specifically attending to which box people select when identifying their race, ethnicity, and sex. They can also source or recruit from historically Black colleges and universities (which admit students from all backgrounds) rather than creating hiring policies that favor one group over another. Similarly, it is likely permissible to still use the “Rooney Rule” to ensure that hiring slates are diverse, even if organizations cannot explicitly favor admitting or hiring one group over another.

Here are a few articles for further reading:

• “What SCOTUS’s Affirmative Action Decision Means for Corporate DEI” by Kenji Yoshino and David Glasgow – Yoshino and Glasgow underscore how much room there is to continue advancing DE&I and highlight three varieties of DEI work—debiasing, ambient, and universal—that will withstand pushback after SCOTUS’s decision.
  

• “How to Effectively—and Legally—Use Racial Data for DEI” by Lily Zheng – Zheng writes about the importance of continuing to collect racial data in your organizations in order to back up your DEI efforts, curtail legal risk, and track how things change over time and how you should adapt your efforts as a result.
  

• “Why Companies Can—and Should—Recommit to DEI in the Wake of the SCOTUS Decision” by Tina Opie and Ella F. Washington – Opie and Washington share recommendations on how to approach the language your company uses around DE&I, the strategies you implement, and the ways you may want and need to adapt your current DEI initiatives and communication about them.

In summary, there are many ways in which leaders and organizations can be creative about how to continue to support their values, while still being consistent with the law. As previously mentioned, the Supreme Court decision only applies to higher education. For the moment, private corporations are not explicitly targeted by the SCOTUS decision (although the decision has rendered them more vulnerable to lawsuits). Even at universities, we are able to promote social and economic diversity by paying close attention to each applicant’s life story, as described in their admissions essay. As mentioned above, there are many other strategies for continuing to promote diversity.

What do you think are other concrete ways that companies can uphold their commitment to DEI?