How DEI work is being threatened post-affirmative action ban and how companies fight back

When the Supreme Court issued the ruling in June that race-based affirmative action in college admissions was unconstitutional it not only sent universities scrambling, it also caused a lot of confusion within companies. What would it mean for diversity, equity, and inclusion (DEI) departments and initiatives? 

It didn’t help that as soon as the decision was issued, opponents of DEI efforts capitalized on the confusion with fearmongering and misinformation. Take the letter sent from the Attorneys General of 13 states in July to 100 CEOs of some largest companies. The letter threatens “serious legal consequences” for companies that set race/ethnicity quotas around hiring and supplier diversity. Arkansas Senator Tom Cotton also sent a similar threatening letter to several top law firms. Shortly after, an anti-affirmative action group filed a lawsuit against a venture capital firm that offers grants to Black women.

Adding fear of legal action to a law change that already had many confused makes for an even more challenging environment for DEI efforts at companies, especially at a time when some companies have been quietly rolling back their earlier commitments.

So how does the affirmative action ruling actually change both hiring and DEI initiatives at companies? What impacts of the ruling have we already seen? How will it change the incoming workforce of the future and how can employers adapt?

I asked Indeed’s senior vice president of environmental, social and governance, LaFawn Davis to parse out exactly what the ruling changes and what it doesn’t.

She pointed out that even before the affirmative action ruling, companies were are not allowed to use race as a factor in hiring decisions, so the ruling shouldn’t change anything about the hiring process. However, she noted that “there are significant disparities that exist for members of marginalized and vulnerable communities.”

“The primary gateway to these opportunities is typically a degree from a selective college or university, yet the same disparities are evident throughout higher education,” said Davis. For more than 50 years, affirmative action created educational opportunities for those underrepresented groups. “Without the opportunities created by Affirmative Action, there are likely to be less BIPOC candidates from these selective schools. Not because they don’t have the aptitude, but because those systemic inequities still exist, which will lead to a less diverse talent pipeline,” Davis explained. 

Focus on skills-based hiring

So what can employers who value diversity do? The first step Davis said is to look at ​​bias and barriers to entry including gender, race, and disability, but also criminal records and college degrees. “​​We know that qualified job seekers are often overlooked because they lack a college degree, even when they have relevant skills to offer. When you screen in for skills over just school or pedigree, employers can reach a wider base of candidates,” she says.  

The same thing goes for candidates with a criminal record. Davis points out that Indeed is a Fair Chance employer and encourages other companies to follow suit. She says that according to research, people with criminal records are no more likely to do something wrong than someone without a criminal record, but that possessing a criminal record is the only case where it’s still legal to discriminate against someone.

Double down on inclusion and belong

After opening up your talent pool by focusing on skill-based hiring, it’s equally important to look at your company’s work environment, including any new hire’s onboarding experience. Davis says that at Indeed they have an employee life cycle team that’s responsible for every step in a new employee’s experience, including making sure that leaders are accountable for DEI and that managers know how to create psychological safety on their team and understand what inclusive interview rules are.

For more on the current legal threats to diversity in hiring, the future of DEI efforts at companies, and tactics for opening up talent pools, listen to the full episode.

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