What SCOTUS’ affirmative action ruling could mean for DEI and the business of corporate wokeness
If you want to know why a transgender media influencer in a bubble bath appears in a Bud Light ad; why big companies shell out money for radical, Marxist charities like Black Lives Matter; or why de-facto racial hiring quotas exist under the euphemism of “diversity,” you need to know something about the business of “DEI.”
It’s the acronym for the nearly $10 billion Diversity, Equity and Inclusion industry.
It’s part of every large company’s ecosystem these days, enforced through increasingly progressive corporate HR departments that have distorted the term diversity to mean endless pride celebrations at the office, and de facto racial quotas in hiring and promotion.
If you think that sounds un-American, and downright strange as a corporate priority, you’re not alone.
There isn’t enough space in this column to dissect how we got to the place where DEI controls C-suite thinking.
Suffice to say, DEI and the business of corporate wokeness is here and it’s big.
And it was getting bigger, estimated to more than double in dollars spent in the next few years.
I say “was” because DEI might also be on its last legs — unconstitutional — after the Supreme Court just struck down race being used as a factor in college admissions.
As I reported weeks ago, C-suite lawyers were closely monitoring a case before SCOTUS on whether race could be used in college admissions.
They believed if race-based admission policies were a goner, DEI would likely be next.
And they knew the conservative SCOTUS majority was ready to make so-called affirmative action in college admission a thing of the past.
Their advice to corporate clients was to plan accordingly for the day when the use of race in everything from hiring and promotion to where corporate money was spent would be largely illegal.
That day is coming fast given Thursday’s 6-3 ruling by the Supremes, my legal sources now tell me.
I know what you’re saying: There are key differences between college admissions and DEI.
The Supremes ruled on admission policies at Harvard and the University of North Carolina, specifically.
They didn’t say anything about what goes on at big companies.
Sorry, my sources who advise corporations on governance issues say the Supremes actually did rule on DEI since corporate DEI is based on some of the same noxious and now unconstitutional premises that colleges have used to justify race-based admissions.
‘Compelling interest’
On the college level, the stated “goal” was to increase the diversity of the student body because it was a “compelling interest” to have college campuses reflect the diversity of the community.
Ditto for using race in terms of hiring and promotion.
Yet, in either case, the goal of diversity isn’t accomplished through benign measures.
Colleges didn’t seek applicants from low-income households of all races, or make race part of a holistic measurement of a candidate’s qualifications.
Race wasn’t really a so-called “plus” factor in deciding admission that past court precedents mandated.
College-admissions bureaucrats (like their DEI counterparts) went further.
The justices ruled that the “plus” factor of race became the main factor in minority college admissions, and the consequences were in themselves racist.
Like white applicants, Asians, who often scored so high on their SATs, were singled out and denied admission.
The university racial bean counters actually used their race against them — a “minus” factor — to achieve their diversity goals.
And now all of that is unconstitutional.
Writing for the 6-3 majority, Chief Justice John Roberts put it this way: “Eliminating racial discrimination means eliminating all of it. . . . The student must be treated based on his or her experiences as an individual — not on the basis of race. Many universities have for too long done just the opposite.”
That’s a pretty sweeping condemnation of race-based admissions that will no doubt bleed into corporate DEI, I am told.
Roberts, my corporate legal sources tell me, relied on a strict reading of Title VI of the Civil Rights Act, which bars discrimination based on race in “any program or activity receiving federal assistance,” and that would include public and private universities like UNC and Harvard.
Title VII of the Civil Rights Act specifically involves employment for companies with more than 15 employees.
That’s where corporate DEI comes in, the legal sources say.
Title VII is virtually indistinguishable from Title VI, they say.
If Roberts or any of the six conservative justices write the majority opinion in a case involving corporate DEI, you can expect a similar ruling.
“The words are substantially the same so the application of the law will likely be the same,” said one lawyer who deals with boardroom issues.
“I can’t imagine any judge seeing a difference and certainly not this Supreme Court.”
Does that mean you won’t be seeing companies searching for “diverse” job applicants, or funneling money to LBGTQ+ causes in the coming days?
Not immediately.
But smart companies will now be talking with their legal departments about their DEI efforts, and what legal risks are in store if they’re sued by an applicant who believes he was shafted for a promotion because he’s white and male.
In the words of my corporate lawyer source: “It’s only a matter of time before every large corporation will be compelled to scrub their human resources and DEI policies” after what just went down with the Supremes.
