Affirmative Action Ruling Could Be a Blow to Diversity in Tech

SAN FRANCISCO — The Supreme Court's ruling against affirmative action could have a chilling effect on the hiring practices and diversity commitments of major tech companies, some industry experts fear, leading to an even more homogenous industry that wields enormous influence over our daily lives.

Some in the sector say last week's decision against race-conscious admissions in higher education could invite more legal challenges on the diversity, equity and inclusion — or DEI — initiatives that have become common among Silicon Valley companies. That could mean a tenuous next chapter for the industry, which was already reducing minority talent amid widespread layoffs and has also become a punching bag of the political right for its relationship to liberal causes.

"It's bad timing," said Reyhan Ayas, a senior economist at Revelio Labs, a company that analyzes trends in the labor market. "A lot of these companies are already under public scrutiny ... and it's a thin line to walk for them and a balance between different sides of the political spectrum."

In a historic ruling last week, the Supreme Court held that race-conscious admissions programs at Harvard and the University of North Carolina violate the Constitution's guarantee of equal protection. Even though the ruling itself does not impact a company's ability to take race into account when considering candidates, nearly 70 companies that signed an amicus brief last year against the decision warned that a less diverse student body could lead to a less diverse pool of talent to recruit from.

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The brief — filed last August by companies including Apple, Google, Airbnb, Lyft and Uber —  argues that DEI efforts "depend on university admissions programs that lead to graduates educated in racially and ethnically diverse environments."

"Only in this way can America produce a pipeline of highly qualified future workers and business leaders prepared to meet the needs of the modern economy and workforce," the brief said.

Following the ruling, several companies involved in the brief said they were still committed to their goals around diversity. Halimah DeLaine Prado, general counsel at Google, said in a statement that the company will "continue to invest in our work to attract a diverse workforce." August Aldebot-Green, an Amazon spokesperson, said the company is committed to recruiting a diverse workforce but also plans to investigate any impact of the ruling on its programs and adjust as necessary to comply with the law. Lori Castillo Martinez, executive vice president and chief equality officer at Salesforce, said in a tweet that the company's "commitment to equality doesn't waver."

Related:Work-From-Home Jobs Attract More Diverse Applicants

Apple, the most valuable company in the world, did not respond to multiple requests for comment.

Despite the continued commitment to prioritize diversity from several big tech companies, some legal experts say the ruling could change how courts analyze legal challenges around recruiting, hiring and promotion. That means companies could more often find themselves on the losing side of legal challenges that claim so-called reverse discrimination in the workplace, where an employee of a dominant racial group argues they were discriminated against based on their race and gender.

Morgan Lewis, a law firm specializing in labor and employment litigation, said the impact of the decision will probably not be immediate, but organizations should still "take a proactive approach" to this ruling and evaluate the "potential legal and reputational risk" of their current hiring practices.

The Supreme Court's ruling comes amid an increasingly tense political climate, where conservative legal groups have already challenged companies on their hiring practices. Since last year, America First Legal, the group run by former Trump aide Stephen Miller, has filed at least nine complaints with the Equal Employment Opportunity Commission that target a number of major companies.

It has accused them of "hiring people based solely on immutable characteristics, like race or sex, rather than qualifications or abilities," arguing it is a violation of federal civil rights law.

After the decision Thursday, Gene Hamilton, general counsel at America First Legal, said the group "will be redoubling our efforts in the weeks and months ahead to advance equality under the law for all Americans, especially in the private sector."

Those legal challenges add to rhetoric on the national stage where such emphasis on diversity has come under scrutiny. For example, some Republicans blamed the collapse of Silicon Valley Bank earlier this year on DEI initiatives, and Gov. Ron DeSantis of Florida, who is seeking the 2024 Republican presidential nomination, and has decried what he called the "woke mind virus" and signed legislation that limits diversity training in the workplace.

Bhaskar Chakravorti, the dean of global business at the Fletcher School at Tufts University, said the chilling effect on such hiring practices could add to a "double whammy" for an industry that was already struggling to retain its diverse talent.

Even though corporate DEI programs gained momentum during the pandemic amid the Black Lives Matter movement, some companies lost gains they made as layoffs across the industry disproportionately impacted women and minorities. Chakravorti said that's because many women and minorities were often in newer roles and less-technical roles that companies decided to cut while trying to trim costs amid a sluggish economy.

To maintain commitments to diversity, he said, companies don't need to just hire minorities. They also need to promote them into key decision-making roles.

While many companies boast growing percentages of minorities overall, that number shrinks at the higher ranks. For example, at Google, 46 percent of the overall workforce in the United States was White vs. 60.3 percent in leadership roles, according to its 2023 diversity report. At Amazon, 64 percent of senior leaders in the United States were White, compared with 32 percent of its overall workforce, according to data as of December 2022.

This commitment is critical, Chakravorti said, especially considering the current mania around artificial intelligence, which is rapidly transforming Americans' lives but also highly susceptible to the biases of the humans designing it. Federal regulators recently sounded the alarm, saying ill-informed design choices could exacerbate racial disparities.

"We all know it's important to have a diverse workforce regardless of the industry. But in tech, it's not just good to have, it's essential. When you think about AI, so much of this product is going to permeate our lives in so many ways. ... The product itself is reliant on the diversity that is creating it."

— Trisha Thadani, The Washington Post