How the affirmative action ruling may also affect DEI in the workplace

ROCHESTER, N.Y. – It’s been almost two weeks since the Supreme Court ruled against affirmative action. While the decision to ban race from factoring into college admissions should stay on campus, national attention has turned to how this may change diversity, equity, and inclusions programs in the workplace.

“Will this decision be read in a much broader sense?” Lawyer Langston McFadden said. “Will this leak over into the employment area where you will have people question whether diversity equity and inclusion efforts are necessary or even legal?”

McFadden is the former president of the Monroe County Bar Association. The firm he co-founded practices civil rights litigation, among other things. He believes that the restrictions on race-based college admissions will open the legal door to challenge other race-based diversity initiatives. While this ruling should start and end with colleges, the conversations it sparks may push people to the courthouse.

“The one thing that I’ve seen in my career is that we are a litigious country and anywhere there’s a chance that the challenge can be made, people will step to the plate and try to take that challenge and we’ll see it play out in the court system,” McFadden said.

DEI programs work to bring underrepresented voice into an office – and keep them there, through support and career advancement opportunities. Those underrepresented voices are usually comprised of women, physically or intellectually disabled people, and other minorities.

Jobs in the DEI industry have exploded in recent years. According to job posting site Indeed, jobs related to DEI saw a massive 56% jump in 2019. Going into 2020, that increased to a staggering 123% — unusual for most jobs. Indeed attributed the rise to current events, pointing to the national surge in support for the Black Lives matter movement. That’s tapered off in recent years.

McFadden said that as the social pressure dies down, this new setback for race-related diversity initiatives leaves DEI next in line.

“There is a concern that people will read this decision to start working its way into programs such as [DEI],” he said.

According to DEI consultant Sesha Yalamanchili, race-related inclusion is where the similarities end.

“DEI programs are very different than affirmative action,” she said. “And it gives [businesses] reason to really get clarity around what these programs are and what they exist to do.”

Yalamanchili is a consultant for clients from Buffalo to Syracuse, and recently has started advising the Greater Rochester Chamber of Commerce. She says these programs are not about checking a race-related box when hiring, or advancing someone because they’re a woman. Instead, they’re about identifying and acknowledging biases in hiring or promotions that may give one candidate a leg up over another, she explained.

“Are you just creating quotas? Because if you do that, you are going to be challenged [following the affirmative action,” she said. “But DEI work as I said before hasn’t been about that […] This is not new to the DE&I work being challenged. So this is yet another interesting question that is coming up: ‘With this Supreme Court ruling, how do we address it?’”

McFadden said that if and when the legal challenges to DEI arise, they likely won’t be in New York, which has a legal commitment to diversity. He said that we will likely see them arise in another state – such as Florida. The differences in state decisions could eventually bring this up to the Supreme Court.