No, SCOTUS Did Not Make Your Company’s DEI Programs Illegal

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The most effective approach to DEI is also the best for controlling legal risk: Focus your DEI program on interrupting the bias that’s constantly transmitted through basic business systems. This is how most corporate DEI programs, which typically focus on trainings and tweaks to organizational systems to level the playing field, already work.

How? Let’s take an example of hiring bias found in one of the 25 bias interrupters experiments my team currently has in the field. We found that white men at a tech startup were being hired with much lower ratings than any other group. We also found that white men typically were rejected only if they had very low ratings. Candidates from other groups were rejected even when they had far higher ratings.

Collecting this data can also decrease legal risk because Title VII prohibits policies that create a disparate impact based on race or gender. No company wants to learn about this kind of problem onlyOnce you have the data you’ll need to fix any problems you find. Don’t leave biased systems in place and then try to solve the problems you’ve created by explicitly considering race at the last minute. Instead, follow basic precepts of industrial-organizational psychology by increasing structure.

Two final parts of the majority opinion hold messages for the corporate world. If you do want to hire a qualified person of color in a context where a reverse discrimination suit might ensue, the majority opinion tells you exactly what to say.says that while one cannot give someone an automatic boost based on race, one can consider how a candidate overcame various life obstacles, including racial discrimination. Heads up that this is how to talk.

This language has implications for another common DEI practice: employee resource groups , or voluntary groups of employees who align around a shared identity. These groups reflect on the evidence-based-but-now-illegal assumption that Black employees tend to have a different experience than white employees at your company.

 

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