Recent developments have once again brought the topic of affirmative action to the forefront of national conversation. Thirteen state attorneys general have sent a letter to the CEOs of the 100 biggest U.S. companies, cautioning them about the legal consequences of using race as a factor in hiring and employment practices. This move demonstrates how the Supreme Court’s recent ruling dismantling affirmative action in higher education may trickle into the workplace.
Affirmative Action in the Workplace, from Past to Present
Affirmative action policies, first introduced in the 1960s, were considered a groundbreaking response to the pervasive discrimination that had marginalized certain groups in American society. These policies were designed to counterbalance the effects of institutionalized discrimination by providing increased opportunities in education and employment to underrepresented groups. The ultimate goal was to enhance diversity, promote equal opportunities, foster a more inclusive society and create a more equitable future. By promoting diversity in workplaces, affirmative action policies aimed to break down barriers, challenge stereotypes and create environments where a variety of perspectives could be heard and valued.
Fast forward to the present day, we still find laws in place that uphold the principles of affirmative action, which were established as far back as the 1970s. Particularly, according to Executive Order 11246, federal contractors with 50 or more employees and at least one contract of $50,000 or more should “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin”. Section 503 of the Rehabilitation Act of 1973, also requires contractors to implement Affirmative Action Plans (AAPs) to recruit, hire, promote, and retain individuals with disabilities.
The legal provisions for AAPs were implemented to ensure employers actively worked to promote equity and prevent discrimination in their hiring practices. The laws used fair and impartial language, with no intention of favoring any particular minority group. Rather, they aimed to establish equal opportunities for all individuals. However, these provisions have also led to legal challenges known as “reverse discrimination” suits.
In contrast, the EEOC’s guidance has brought an additional perspective to the discussion. While it agrees that “discrimination against any individual on the basis of race, color, religion, sex, or national origin violates Title VII,” it also recognizes in section 607.1 that “race, sex, and national origin conscious decisions may be required in order to eliminate the effects of past discrimination and the adverse effects of present policies and practices”. As a result, many companies have interpreted this framework as an obligation to extend employment opportunities to qualified yet underprivileged minorities whenever possible. While this approach was seen as an effective means to comply with the law and ensure diversity and equity, there is now a shifting landscape.
The recent decision by the Supreme Court has sparked conversations about the future of affirmative action in the workplace. It appears that in the future, companies may not be able to prioritize certain minorities over others, as that was not the primary intent of the legislation. It appears that there is a shift towards favoring Equal Employment Opportunity (EEO) over affirmative action, as discussed in our recent article that outlined their differences.
Navigating DEI: The Attorneys General’s Impact
The attorneys general’s letter is a significant development in the ongoing debate over affirmative action. The letter, signed by thirteen state attorneys general, argues that the Supreme Court’s June ruling, which declared that race cannot be a factor in college admissions, could also apply to private entities, such as employers. They assert, “Treating people differently because of the color of their skin, even for benign purposes, is unlawful and wrong.” This statement underscores the attorneys general’s stance that even well-intentioned actions aimed at promoting diversity could be viewed as discriminatory.
The letter also suggests that DEI programs could be a form of discrimination. This assertion indicates a potential shift in the legal interpretation of DEI initiatives, which have traditionally been viewed as mechanisms for promoting diversity. If this interpretation gains traction, it could have far-reaching implications for how companies approach DEI.
While the letter does not initiate legal action, it signals a potential for future litigation. The attorneys general have stated that they will be monitoring companies’ practices in hiring employees and contractors. This scrutiny could lead to legal challenges if companies are perceived to be using race as a factor in their hiring decisions. The letter specifically calls out companies including Airbnb, Facebook, Google, Goldman Sachs, Microsoft, and Netflix for programs intended to increase racial diversity with hires and suppliers. The inclusion of these high-profile companies suggests that the attorneys general are prepared to challenge even the largest and most influential corporations over their DEI practices.
In essence, the letter represents a significant shift in the discourse around affirmative action and DEI initiatives. It suggests a potential legal and ideological challenge to the methods that many companies currently use to promote diversity and inclusion. As such, it underscores the need for organizations to carefully review their DEI practices and consider alternative approaches that can withstand potential legal scrutiny.
Innovative Ways to Ensure Equality and Diversity
Amid the evolving landscape of affirmative action, organizations must adapt their approach to promoting workplace equality and diversity. Given the potential legal challenges to conventional affirmative action policies, HR professionals have the opportunity to adopt fresh and effective strategies to uphold the principles of DEI.
The only viable approach is to focus on objective data that have been identified as predictors of future job performance. Unlike traditional HR practices that are often based on intuition and subjectivity, this method aids in identifying the best candidates for a job in a fair and objective way. It involves using objective tools and strategies to help reduce the negative impacts of unconscious bias. More often than not, unconscious bias in hiring goes unchecked and can significantly influence results during resume screening, due to personal identifiable information communicated through candidates’ name, gender, age, and education.
Bryq stands out as a tool that’s committed to reducing unconscious bias due to its blind-screening tools and objective prediction of candidates’ potential for success while hiring. It relies on objective data in the form of psychometrics (cognitive ability and personality traits) that have been identified as one of the best predictors of future job performance. Bryq has also undergone a thorough audit under the NYC AI Bias Law, a process that confirms its fairness and unbiased approach in the recruitment process. This means that Bryq has been officially recognized for its commitment to providing equal opportunities for all candidates.
Conclusion
The landscape of affirmative action is undeniably changing, with potential implications for how organizations approach diversity, equity, and inclusion. However, these changes also present an opportunity for innovation. By focusing on objective data, companies can continue to promote diversity while identifying the best candidates for open jobs. Tools like Bryq, can play a crucial role in this new landscape.
Would you like to learn more about how Bryq can assist you in making data-driven, unbiased talent decisions? Schedule a free demo with our team!
