A VIEW ON THE SFFA DECISION

WORKFORCE 20NEXT

Two Letters Diverged

It can be argued that robust debate is core to our democracy. Perhaps now more than ever, it is altogether too easy to find a divisive topic. However, there are still things we can all agree on. A good example is a recent Public Agenda / USA TODAY Hidden Common Ground survey which found that more than 90% of Americans say all people deserve an equal opportunity to succeed, no matter their race or ethnicity.

The debate ensues, however, when those same Americans are asked about the consequences of racism and what we should collectively do about it. The survey data further show that answers and outlooks can often become divided along racial and political lines, and those disagreements can quickly escalate as the American tradition of healthy debate and discussion on important issues becomes increasingly polarized and discordant.

One such disagreement recently escalated to the US Supreme Court, whose ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Case Nos. 20-1199, 21-707 (June 29, 2023) (“SFFA”) represented a landmark decision in race-based affirmative action programs and may lead to confusion regarding the implications for common affirmative action and diversity, equity, and inclusion (DEI) practices among private sector businesses. Some of this confusion is likely the result of conflicting letters issued by two sets of state attorneys general.

Shortly after the SFFA decision was rendered, a letter from 13 state attorneys general was sent to the CEOs of the Fortune® 100 companies. In their letter, the 13 attorneys general ask CEOs to “…comply with these race-neutral principles in your employment and contracting practices.” They support their request by characterizing programs that foster diversity and inclusion in private-sector organizations as constituting evidence that their companies are engaging in racial discrimination.

In response, 21 other state attorneys general wrote to the same CEOs explaining their position that programs to increase outreach and representation along with aspirational goals regarding diversity do not constitute unlawful discrimination, stating that “…efforts to recruit diverse workforces and create inclusive environments are legal…”.

To bring some clarity to these issues and guide organizations on how they should proceed, APTMetrics offers the following facts and definitions:

Discrimination on the basis of race is unlawful. On this point, both letters agree.

Overlooked is that discrimination based on other specific characteristics (e.g., gender and age) is also unlawful.

Quotas are generally unlawful. On this point, both letters appear to agree that impermissible quotas are unlawful, but also that, in certain instances, quotas are lawful.

These instances are limited to specifically agreed-upon actions to remedy unlawful discrimination when a court judgment indicates that clear harms were caused by illegal discrimination. Notably, quotas imposed by a court decree generally end when the harm has been remedied. 

 

Affirmative action is the act of seeking talent in locations that may have been previously overlooked. “Locations” may include, among other things, Zip codes or languages in which job advertisements are targeted, advertising on a broader range of radio stations that reach more of the “potentially hirable” market or recruiting for talent at a wider variety of colleges.

It is critical to note that engaging in “affirmative action” is not “hiring.” These are two separate processes. Affirmative actions simply broaden the potential candidates to be considered for jobs. Any respondent to an ad or posted opportunity who does not meet the minimum requirements for the job is, by definition, not a candidate. Thus, affirmative action programs do not favor “unqualified” over “qualified” candidates.

Finally, DEI programs are efforts by organizations to promote “the fair treatment and full participation of all people, especially in the workplace, including populations who have historically been underrepresented or subject to discrimination because of their background, identity, disability, etc.” (Dictionary.com).

It is on this particular point that the letters diverge. The letter from 13 attorneys general tends to equate DEI programs with illegal discrimination, whereas the letter from 21 attorneys general indicates that the aspirational goals and inclusion efforts undertaken in DEI programs do not. 

In summary, it is settled law that discrimination on the basis of race and other protected classes is wrong and unlawful. [i]  Additionally, quotas based on racial and other protected characteristics are unlawful unless specifically required in a judicial consent decree to remedy the outcomes of specific discriminatory actions. Broadly, the differences between the letters issued by the two groups of attorneys general center around whether affirmative action and DEI programs constitute “quotas” or “illegal discrimination.” Aspirational goals are not quotas, which have a specific legal definition that guides their use. And the SFFA decision focuses specifically on Title VI of the Civil Rights Act of 1964, but not those provisions of the Act (Title VII) related to private-sector employers.

The actions commonly taken to foster improved inclusion and diversity vary from company to company based on where they are in their efforts to improve inclusion. [ii] This is best illustrated by examining the models and frameworks used across the globe and multiple communities to expand opportunities to those who have been oppressed or under-resourced. [iii] In the U.S., efforts to broaden the diversity of the workforce by expanding recruiting sources, ensuring that job descriptions include realistic and job-related minimum requirements, and opening opportunities for the entire workforce to actualize their potential are critical to staffing roles with the talent that can succeed and thus necessary for businesses to successfully compete.

We recommend the following resources to help you identify productive and scientifically-based methods of building a more inclusive, engaged and productive workforce.

The APTMetrics job analysis, assessment, and litigation consulting services help organizations take advantage of opportunities to build a more productive, diverse and engaged workforce. [iv]

Diversity

[i] Unlawful discrimination occurs when policies are intentionally crafted or violated to adversely affect some applicants but not others on the basis of protected characteristics (disparate treatment) and when policies that appear neutral on their face negatively affects employees based on protected characteristics (disparate impact).

[ii] Lundquist, K. K., & Rodriguez, D. A. (in press). Diversity and the Journey to Inclusion. In R. Silzer, J. Scott, & W. Borman (Eds.), Handbook of Practice in I-O Psychology. Society for Industrial and Organizational Psychology.

[iii] Caver, K., Lewis, R.E. & Hodges, C.H. (in press). Leadership selection and development as a pathway to strong institutions. Sustainable Development through the World of Work: Translating Insights from Organizational Psychology. New York: Oxford University Press.

[iv] Lundquist, K.K. & Lewis, R.E. (2023). Making progress on diversity: The promise of inclusive leadership. In Kantrowitz, Reynolds, & Scott (eds.), Talent Assessment: Embracing Innovation and Mitigating Risk in the Digital Age. New York: Oxford University Press.