Republican Attorneys General of 13 states sent a letter to Fortune 100 CEOs. Highlighting the recent U.S. Supreme Court ruling that banned Affirmative Action in college admissions, the letter explicitly directs executives to avoid the use of racial preferences in corporate hiring practices. “Racial discrimination in employment and contracting is all too common among Fortune 100 companies and other large businesses,” the conservative AGs contend. Given the examples cited throughout the letter, it’s clear that they’re advocating on behalf of one particular group of workers. As companies have implemented racial equity initiatives, white applicants and employees have increasingly sued for claims of reverse discrimination.
“If your company previously resorted to racial preferences or naked quotas to offset its bigotry, that discriminatory path is now definitively closed,” the letter states. “Your company must overcome its underlying bias and treat all employees, all applicants, and all contractors equally, without regard for race.” The seven-page document concludes by warning execs that they’ll be held accountable if they discriminate on the basis of skin color. Their determinations of what constitutes racial preferences and discrimination are ambiguous. Does this mean that companies must abandon all of their racial equity programs and race-conscious policies? A 10-page response letter signed by 21 Democratic Attorneys General insists not.
“We write to reassure you that corporate efforts to recruit diverse workforces and create inclusive work environments are legal and reduce corporate risk for claims of discrimination,” the Democrats assert. “In fact, businesses should double-down on diversity-focused programs because there is still much more work to be done.” They also argue that intimidation was the goal of the Republican AG letter, and that examples furnished therein weren’t sufficiently illustrative of DEI efforts that are common across companies. “The letter’s attempts to equate these permissible diversity efforts with impermissible hiring quotas is a clear effort to block opportunities for women and people of color – especially Black people.” It’s noteworthy that considerably more AGs of color are among the Democratic signatories, not so much for the Republicans.
White workers have been suing companies for claims of reverse discrimination for years. For example, David Duvall, a former Novant Health senior vice president, won a $10 million lawsuit as he lost his job during a time the company was aiming to diversify its leadership ranks. Novant executives said it was Duvall’s “deficient performance,” not his race or gender, that led to his firing. But being replaced by two women, one of whom is Black, was a factor cited in the case. “Novant Health is one of thousands of organizations to put in place robust diversity and inclusion programs, which we believe can coexist alongside strong nondiscriminatory policies that extend to all races and genders, including white men,” the company’s media relations spokesperson wrote in an email to CNN following the 2021 court ruling.
AT&T, Google, YouTube, American Express, Infosys, Revolt TV, and PECO (Philadelphia’s largest energy provider) are just some of many companies white workers have sued for racial discrimination in recent years. Last month, Shannon Phillips, a white woman and former Starbucks regional director, was awarded $25.6 million after a jury determined she was fired because of her race. The Philadelphia Starbucks at which two Black men were arrested in 2018 was in Phillips’ region.
The SCOTUS Affirmative Action ruling and the Republican Attorneys General letter are guaranteed to spook many executives. Surely, both will also engender confusion about which racial equity activities can lawfully occur within companies. Frightened business leaders will roll back or altogether abandon existing anti-racism commitments. Additionally, they’ll instruct their employees not to create new race-conscious initiatives that have any potential of inviting legal scrutiny. This doesn’t have to be their response.
Below are four examples of racial equity actions I’ve either advocated or helped companies implement in recent years. In all four cases, at least one person asked me, “but isn’t this reverse discrimination?” The answer is no.
1. A CEO says in a speech that DEI is her highest priority and she’s going to hold everyone accountable for ensuring the business becomes more diverse at all levels over the next three years. Some employees erroneously hear her say that no additional white people will be hired or promoted. The CEO can make painstakingly clear that diversification doesn’t have to be a zero-sum game. Additionally, she and other leaders can transparently show that as the number of people of color increases, white people remain very well represented.
2. The executive leadership team has always been almost entirely white. In fact, it’s never had a Latino member. There’s a significant underrepresentation of senior-level Latino leaders beyond the company’s C-suite. One white SVP retires. Instead of posting the position, the CEO decides to directly target an irrefutably qualified, highly accomplished Latino SVP who’s achieving impressive results at another company. The CEO could hire this person without interviewing others.
3. More than 85% of the firm’s managers and leaders are white; most employees of color are stuck in entry-level roles. To address this, the firm creates a yearlong leadership acceleration academy aimed at racially and ethnically diverse employees. Preparing a more diverse bench of prospective leaders for future roles is its goal. Employee resource groups (ERGs) are heavily engaged as partners for academy applicant recruitment, and promotional materials showcase people of color in ways that make clear which groups are the academy’s primary targets. The firm can neither tell white workers they’re ineligible to apply nor systematically discriminate against them in the academy selection process. Chances are, though, not many white employees will apply.
4. Because Black women are underrepresented throughout the company, the HR, communications, marketing, and DEI teams collaborate with the Black ERG and women’s ERG on a print, digital, and social media campaign aimed at attracting more Black women applicants. They also ensure the company has a significant presence at the annual Essence Festival, which attracts thousands of Black women professionals; partners with alumnae chapters of the four historically black sororities, as well as with the alumnae associations of Spelman and Bennett Colleges (the two HBCUs for women); and designs job announcement ads that feature Black women. Nothing about this is unlawful. The materials just can’t say, “we’re only hiring Black women, whites need not apply.”
These are just four examples of what can be done; there are many more. Truly committed leaders will find innovative, lawful ways to achieve, advance, and sustain racial equity within their workplaces.
Equality entails doing the exact same thing for all employees. In most companies, white applicants and workers don’t need race-conscious initiatives to engineer or sustain their representation. Equity requires targeted, customized approaches. It demands reparations for past wrongs and historical negligence. It’s about ensuring that underrepresented groups and professionals who are often placed on the margins get afforded well-deserved opportunities to succeed.
Unfortunately, many white American workers will neither understand nor appreciate equity for others. They will convince themselves that gains for professionals of color are occurring at their expense. Some will file lawsuits. Despite these threats, companies and the people who lead them should pursue racial equity with confidence, seriousness, and legally-permissible race-conscious strategies.
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