Disclaimer: This blog post should not be viewed as a replacement for expert legal counsel. If you need assistance in understanding how this ruling may affect your organization's particular DEI strategies, we highly recommend consulting with your company's Legal Team.

I’m sure you’ve all heard about the US Supreme Court’s decision on Affirmative Action regarding college admissions from last week in a 6-3 decision. After reading this, I was full of anxiety because immediately I thought about the path this was taking… eventually leading to ERGs.

You may be wondering - what does this have to do with ERGs?

It's important to know that this decision doesn’t directly affect private companies. It involves Affirmative Action programs under Title VI, relating to schools. Affirmative action programs that involve employers fall under Title VII, which was not challenged in this case. But that doesn’t mean it couldn’t be called into question down the line.

Krissy Katzenstein, a partner at Baker & McKenzie LLP stated that The decision “will lead to a further uptick in trends we are already seeing in terms of both reverse discrimination cases and, more broadly, challenges to DEI initiatives that many companies have undertaken."

The ERG Movement is all about ensuring the long-term success of ERGs. This means having uncomfortable conversations, like debunking the popular stat that 90% of Fortune 500 companies have an ERG Program (the reality is 79.4%).

The Supreme Court case showed that clear and specific aims are more important than vague ones. These are justifiable arguments. Although the court didn't accept the schools' well-intentioned goals because they couldn't be clearly and directly measured, it's a lesson for us. We need to work based on solid facts, not just emotions. On hard, indisputable data.

What Your Company Can Do:

The long term effect on ERGs likely won’t be seen for some years, but eventually they will come into question. Here are some ways to prepare your ERG Program.

Reevaluate your language when referencing ERGs / Diversity.

Is a stereotype being pushed (ex. This protected class of people is automatically socioeconomically challenged)? Is there language that indicates a feeling vs a documented and Proven fact (ex. ERGs help improve retention without a backing data)?  

Open your ERG groups… like TODAY.

This isn’t a question. Allowing some employees to join a company sponsored program based on any protected class and not others is ILLEGAL

Don’t allow ERG Leaders take the reins on diversity recruiting.
In an effort to produce business impact, some ERG leaders may be inclined to set hiring goals for their identifying class or an increase in talent from people in a protected class by X percent. Quota based hiring from members of protected classes are illegal. ERG Leaders may not know this.

Focus on what you already have
I will acknowledge that for D&I leaders, our hands are often tied. How can I prove business impact and use data that my executives want in places like UK which forbid collecting information like race or in places like the US that forbid quotas hiring. Therefore, for ERG leaders, who unfortunately are often seen playing the part of a D&I professional - they too are struggling for what business impact looks like for their ERG. This is why I recommend that instead of focusing on increasing diversity, you focus on the employee experience of the members of your ERG that are already there. You can also speak with executives to learn more about how they would see the ERG working with their department (in the future..when you add that part it helps to let their guards down).

Center your program in metrics.
Reiterating my point above. Measuring belonging, satisfaction over hiring numbers… we all know that even with more people from a group that doesn’t ensure a better experience for them anyway. First focus on creating a better experience for those that are already there and then circle back (allowing time for legislation to become more clear.

Consult your legal team.
Even things that have historically been “low risk” can now be justified as a lawsuit. Build in consulting your legal team with any process involving diversity hiring or promoting…also with any ERG documentation.

The Lingering Question…

What do we do in a world where equity is what we want, but is equality what the law requires? When in a world where you have to choose between an (objectively) morally right vs legally right?

Although Diversity professionals often bring up Title VII to justify why someone can’t be DENIED entry or perks due to race or another protected class, the flip side of that coin is that someone can’t be ADMITTED or given “special privileges” due to race or another protected class.

Which begs the question - a question that I’ve been pondering for the past month since I was asked by an ERG Leader… is it wrong (or creating legal liabilities) to not have a White Employee ERG? To not have a Men’s ERG?

In full investigation mode. Until next time -

The ERG Homegirl (Maceo Owens) ✌🏿

P.S. Lawyers from Hunton Andrews Kurth LLP recommended that D&I Leaders  “Consider modifying the goal of DEI programs to seek diversity based on broader characteristics that do not involve protected classes, such as experiences, economic background, or worldview.” I would love to hear from anyone who’s done this or has thoughts on how to do this.