US Supreme Court Decisions May Hinder Corporate Diversity • The Register – News Block

Analysis The US Supreme Court has issued two decisions that threaten to upend efforts by tech companies to be more diverse, equitable and inclusive.

On June 29, 2023, the Supreme Court ruled (PDF) that the admissions programs at Harvard College and the University of North Carolina violate the equal protection clause of the 14th Amendment by using race as an admissions criterion.

The next day, the high court decided (PDF) that the First Amendment prohibits Colorado, through its Anti-Discrimination Act, from forcing a web designer to create content that expresses an opinion you disagree with: a site website for a wedding involving participants other than a man and a woman, based on the religious beliefs of the plaintiff. It doesn’t matter that no such scenario occurred, it is now a legal precedent.

Silicon Valley, as has been widely reported, has a problem with diversity, equity, and inclusion, commonly abbreviated as DEI. It’s a costly problem: Lack of support for DEI drives away employees, costing American businesses an estimated $16 billion annually in employee replacement costs, according to a 2017 report (PDF) from the Kapor Center for Social Impact.

While there is debate about whether supporting DEI in corporate settings translates into better financial results (some studies suggest it, others not so much), there is no doubt that some of the world’s biggest brands see value in DEI for polishing. his public image from the start. least. Most companies prefer not to be perceived as racist, sexist, or discriminatory, aside from the odd billionaire-run feud that monetizes outrage.

But DEI’s programs, already under pressure from layoffs and hiring freezes, may become a potential legal risk now that the Supreme Court has ruled that race should not determine school admission in the same way. that inherited status and that it is acceptable to deny creative services to a protected class of people based on beliefs.

“I think it will have a profound effect, a profound negative effect,” said Wendy Musell, counsel at the employment law firm Levy Vinick Burrell Hyams LLP and partner at the Law Offices of Wendy Musell, in an interview with Register.

Musell, who specializes in disability and employment discrimination cases in California, said the affirmative action decision has the potential to reshape the employment pool for college graduates hired by technology companies.

“If those institutions are whiter and less diverse, then the applicant pool will be more white and less diverse,” he said.

Musell also believes that DEI’s corporate initiatives will suffer. He quoted a passage from Justice Sotomayor’s dissenting opinion: “Equal educational opportunity is a prerequisite for achieving racial equality in our nation.”

“If you are thwarting equal educational opportunity, you are absolutely thwarting equality in the workplace, as well as in other areas of power in our country,” he said.

“Tech companies are already laying off a disproportionate amount of their DEI departments with recent layoffs and I think they are reviewing both of these decisions, or their legal departments should probably review both decisions, to see how they impact how they implement their policies and procedures regarding DEI in the workplace and in recruitment”.

Musell said many employers are committed to DEI for a variety of reasons, including support for equal rights, better financial results, and ensuring their products fit those who use them, which is much easier when those products come from a diverse workforce.

“I think this is a coordinated legal attack on the concept of diversity in the workplace,” Musell said.

As for the First Amendment case, 303 Creative LLC v. ElenisMusell expressed his frustration with the decision.

“Frankly, I had a hard time with the majority analysis in that case,” he said. “I vehemently disagreed. I think the contours of that decision aren’t very clear. And I imagine a lot of business owners are in the same position as me, weighing that decision, wondering what the heck does it mean here, where to (create a business website) weddings for a same-sex couple) is considered speech rather than conduct.

“The Supreme Court says that Ms. Smith can literally have a sign that she can put up, which I assume would be on her own website, stating that she didn’t have to cater to same-sex couples looking for websites related in any way to the marriage. That (the Supreme Court found this) perfectly acceptable, I find, frankly, shocking.”

Musell expects many companies, particularly technology companies, to wonder how the line the Supreme Court drew between speech and conduct will affect DEI initiatives in the workplace, such as celebrating diversity, non-discrimination, or gay pride month

Arguing that the decision errs on fairness and unconstitutional premises, Musell said the court’s reasoning fails when applied to another protected class such as gender, race or disability status.

“You have a protected class that you say you don’t have to serve in a public accommodation,” he said. “Before last week, I would have said that’s dead in the water (as a matter of litigation).” ®