The Essential Questions Facing Employers on Abortion Rights

BY Emily McCrary-Ruiz-Esparza | July 01, 2022

When corporate America was called on to speak out in favor of same-sex marriage and racial justice, few hesitated. On the supremely divisive issue of abortion, however, corporate leaders face much tougher decisions. Despite the leak of the majority opinion in the Supreme Court’s hearing of Dobbs v. Jackson Women’s Health Organization almost two months before the official decision, employers are scrambling to understand what the reversal of Roe v. Wade and the removal of reproductive rights means for their employees.

The list of questions companies will have to address in the coming months is growing–and changing. For now, employers are thinking immediately about public statements, in the middle distance about health care coverage, and over the long term about whether they will contribute to the fight to regain reproductive choice. Among the most essential questions:

What Kind of Position Will You Take on Abortion Access?

Rather than condemning the ruling itself, most corporate leaders framed the issue as a matter of employee reproductive rights. “I believe CEOs have a responsibility to take care of their employees–no matter what,” Salesforce CEO Mark Benioff said in a tweet. “As a company,” Hewlett Packard CEO Enrique Lores tweeted, “we believe that it should be up to every single one of our employees to decide whether and when to start a family, whether that’s choosing who they love and marry, taking paid time off if they are having a child, and having access to health care.” But many other major corporations, including Walmart, Coca-Cola, and Delta Airlines, stayed mum on the issue.

As businesses consider their public message, Susan McPherson, who runs McPherson Strategies, a company that consults on corporate social responsibility (CSR), recommends considering this question: “Do our company values and giving align with the statement we are making? Align with our philanthropic and political spend?”

McPherson warned about inconsistency. “Making a public statement in support but not providing any tangible benefits to workers,” she said, is the first mistake employers are likely to make. “Words matter less than actions,” she told From Day One via email.

The second is being insincere. “If your company speaks out against something but you have donated to political campaigns or PACs that support it, workers and consumers will call out that inauthenticity, and the company will suffer the consequences.” For example, AT&T celebrates Women’s Equality Day, but is the biggest corporate donor to politicians behind anti-abortion “trigger laws” designed to ban abortion upon the defeat of Roe v. Wade, Insider reported.

Not every company will be able to make a public statement about access to abortion rights without losing customers and employees. “We recognize people feel passionately about this topic, and that there are teammates and athletes who will not agree with this decision,” said Dick’s Sporting Goods CEO Lauren Hobart in announcing financial support for employees who decide to travel to have an abortion in states where it remains legal.

Even if a company decides to neither publicly endorse nor condemn, “first and foremost, don’t pretend that this didn’t happen,” said Sarah Sheehan, co-founder and president of the employee-coaching platform Bravely. “I do think it’s possible to acknowledge in a very neutral way that this decision has repercussions and that there are a lot of feelings surrounding it that may impact how people show up at work,” she told From Day One.

Does Your Health Care Plan Cover Abortion Services in States Where It Is Legal?

Employers are examining whether their current health care plans cover abortion, and if not, whether they will make changes. Many high-profile companies including Bank of America, Goldman Sachs, JPMorgan Chase, Nike and Starbucks have said they will cover travel and health care costs related to getting an abortion in a state where it is legal.

Nike is among the high-profile companies that have promised to support employees who need to travel for abortions (Photo by Artran/iStock by Getty Images)

However, new abortion benefits won’t be available to most U.S. workers, according to a survey of 220 HR executives conducted this week by the Gartner consulting group, Bloomberg reported. A majority of the HR leaders in the survey said they don't plan to change their health care offerings, or are still considering options. This gap is likely to add to social inequality.

“To the extent that corporations are making any moves, they’re making moves with regard to the so-called talent—low-wage, hourly workers are not going to be getting these extra benefits,” Robert Reich, the secretary of labor under President Clinton, told Boomberg in an interview. “It’s a cover. It’s a sweetener. It makes people feel as if the right things are happening.”

Employers that have added travel costs to their health care offerings will, in the coming months, wade through the administration of such a benefit in a way that satisfies compliance requirements and protects the workers who use it. They will have to navigate state-by-state legal issues as well. Texas lawmakers have warned companies including Citigroup and Lyft that they may ban or sue companies that help employees travel out of state for abortions.

How Will You Protect the Confidentiality of Employees Who Seek Abortion Care?

For companies that choose cover or reimburse the cost of travel for abortion care, confidentiality should be a concern. Employees may feel compelled to disclose the reason for their absence to their manager or HR director—information that could put them at risk of discrimination. “You shouldn’t have to tell your manager you're getting an abortion,” Aubrey Blanch, a senior director at the employee-survey firm Culture Amp, told the New York Times.

Whether such travel puts them at legal risk in states that have made abortion illegal is not clear yet, but suddenly digital privacy is a critical issue, since evidence of a crime may reside in a woman’s smartphone. The Dobbs ruling inspired many women to delete their period-tracker apps, which have become part of many corporate family-health benefits. One of the most popular apps, Flo, announced an “anonymous mode” to allow users to remove identifying details from their profiles.

One way to protect employee privacy is to make abortion benefits non-specific, said Janine Yancey, CEO of Emtrain, an employee-learning platform. The more generic the policy, the better. “Employers are doing it right by drafting a health care benefit that can be used for all health care situations, not just for abortion situations.” She continued: “Employers can provide a generic travel subsidy to all employees who need to travel for health care needs, and the use of that benefit is protected health care information, protected by HIPAA.”

Do You Risk Losing Employees Over Abortion Access?

McPherson said employers should be asking the question, “What are the ramifications, both in employee retention and financially, of not responding or taking a stand?” The American workforce is increasingly principled in its choices. Gartner reported in 2019 that 87% of employees say businesses should make a public stand on societal issues related to the business, and 74% say they should do so even when the issues aren’t directly related to the business.

In the case of access to reproductive care, it’s likely that no matter the position a company takes, some employees will walk. The workers with resources will have the means to leave, and those without resources and without social supports, will not. Salesforce and Google said they would move employees who want to leave states where abortion is banned. Despite such corporate beneficence, the Dobbs ruling puts a new geographical limit on women’s career choices, asserted Tressie McMillan Cottom, an associate professor at the University of North Carolina, writing in the New York Times. “With Roe v. Wade toppled, we do not have the same rights in all labor markets,” she wrote. “In a global market, an empowered worker is one who can migrate. With Dobbs, women cannot assume that we can safely work in Idaho the same way that we can in Oregon or Washington.”

How Will You Protect Other Rights That Are Now at Risk?

The fall of Roe v. Wade raised concerns that the ruling conservative majority on the Supreme Court could roll back other civil rights as well, including same-sex marriage and contraception. Justice Clarence Thomas, in a concurring opinion in the Dobbs case, said the court “should reconsider” earlier precedents that affirmed such rights.

Given the court’s 6-3 conservative majority, employers should start thinking now how they will protect the rights of their employees–and respond to their fears. Employers need to be aware that overturning Obergefell v. Hodges, which guaranteed the right to same-sex marriage, would compromise “access to employer-sponsored health coverage and retirement plans, as well as adoption and fertility benefits, and would leave room for employers to redefine who would qualify as a dependent for employees seeking parental or caregiving leave,” said a report by Charter, an organization that examines workplace practices.

While last week’s decision was not a surprise, especially after the leak of a draft in early May, some employers waited to respond and are now racing to catch up with what is shaping up as a new battlefront in the culture wars. Companies should take the language in the official decision as a serious warning that other rights are now on the table.

How Will You Contribute to State and Federal Action to Protect Reproductive Health Care Rights?

Corporate leaders have been steadily taking a higher profile on social issues, typically with their stakeholders in mind. In the early 2010s, corporate America appealed to the Supreme Court in favor of same-sex marriage. Following the murder of George Floyd in 2020, employers pledged money to racial-justice organizations like Black Likes Matter and the NAACP. When the Russian government invaded Ukraine in February 2022, major companies, including McDonald’s and American Express, halted operations in Russia.

Part of the explanation is peer pressure, asserts Stephanie Creary, an assistant professor of management at the Wharton School. “What we’re seeing right now in many companies is a really strong response to external advice, recommendations, pressure to engage more intently around social issues,” she said last month in a radio interview. She has even noticed an increase in hiring of executives with the title “director of employee activism.”

Even so, the abortion issue may be a bridge too far for most companies. The June poll by Gartner found 20% of HR executives don’t feel compelled to respond in any way to the official Dobbs decision. Thirty-six percent said they aren’t sure. Yet polls consistently show that a majority of Americans oppose the court’s decision to overturn Roe v. Wade. Among women and college graduates, the majorities are even larger.

Those majorities will notice employer timidity on the issue, McPherson told From Day One, and it won’t be long before many consumers do too. “Now more than ever, companies are being challenged to take a stand publicly on social issues that matter,” McPherson said. “Younger workers, in particular, want to know that their company’s values align with their own. This isn’t an issue that’s going away. Businesses are going to continue to be held to account for their speech or silence on things like reproductive rights and LGBTQ+ rights. It’s past time to have a plan in place to take a stand.”

Emily McCrary-Ruiz-Esparza is a freelance writer based in Richmond, Virginia. She writes about the workplace, DEI, hiring, and issues faced by women. Her work has appeared in the Washington Post, Fast Company, and Food Technology, among others.


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The Google Firings: a Signal of a ‘Course Correction’ on Corporate Dissent

For corporate America, it has been a historic experiment in free speech. For a time, big employers showed a growing tolerance of workers speaking out on social and political issues–with even company leaders making bold pronouncements on emerging issues.In 2017, for example, workers spoke up about sexual harassment as part of the #MeToo movement. In 2020, they made their opinions known about racial justice after the murder of George Floyd. In response, many employers made changes to the status quo, updating hiring policies, investigating misconduct, setting up employee resource groups (ERGs), and holding discussions on world events. Some even formed “social issues working groups” to respond thoughtfully to emerging controversies.But the latest cultural flashpoint, the Israel-Hamas war, has not settled in quite the same way. Rather than spurring policy changes and public forums, the tension around this issue has prompted in-office protests and arrests. The politics that moved into the office in 2017 never moved out, but the tenor of today’s conflict–at least in the workplace–is different.In a signal event last month, Google fired 50 employees who took part in sit-ins to protest the company’s contracts with the Israeli government. Nine of them were arrested for trespassing. Google CEO Sundar Pichai sent out an email to staff declaring that work is not a place to “fight over disruptive issues or debate politics.” In another high-profile case, long-tenured National Public Radio reporter Uri Berliner accused the platform of imbalanced reporting on the conflict in a published essay. Berliner was suspended and later resigned.One implication of the corporate response is that the organizational embrace of dissent, especially on polarized issues, is reaching its limits. John Higgins, who researches and writes about employee activism, believes employers are giving the public an “X-ray” of their corporate culture. “I find it fascinating how [Google] created a corporate culture where a sit-in was the only way that the employees thought they could be heard, and the only management response they could imagine was to fire everybody,” Higgins told From Day One. “Everybody’s been talking about dialogue in organizations for decades, and that is not dialogue. That is a straight power play. The question is, where will this end?” The trend so far, notably among tech companies who earlier made a point of projecting their progressive values, is that “we’re seeing a course correction across the board,” Fortune editor-at-large Michal Lev-Ram told CNBC this week.The corporate confrontations echo the conflict over the same issue on college campuses, which has turned violent to the point of stealing media attention from the underlying crisis in Gaza. As students and faculty members demand that universities divest from their interests in Israel, as well as cut ties with organizations that do business in Israel, several universities have responded aggressively, which has affected not just students but also the people who work there: faculty and staff.Nadia Abu El-Haj, a professor at Barnard College and Columbia University, believes that by asking New York City police to intervene with pro-Palestinian protesters on campus, Columbia’s administration lost the confidence of its own faculty. “That decision was the last straw: it galvanized faculty who otherwise not only had no involvement in pro-Palestine politics but in some cases actively disagreed with the students,” she said in an interview with the New York Review.Faculty members have reportedly been arrested at Stony Brook University, the University of North Carolina at Chapel Hill, Virginia Tech, Washington University, and California Polytechnic Institute, not to mention student arrests across the U.S., which now number in the thousands. At Emory University, at least one professor was handcuffed, while a teacher at Dartmouth College described her arrest as “brutal.”Where Will the Crackdown Lead?“The firings at Google, I think, are a sign of the zeitgeist,” said Alison Taylor, a clinical associate professor at New York University’s Stern School of Business and author of the new book Higher Ground: How Businesses Can Do the Right Thing in a Turbulent World. In 2024, companies don’t need workers as desperately as they did just a few years ago. Job openings in the U.S. sank to a three-year low in March and quit rates declined as well. As power shifts from employees back to employers, many companies are clawing back power.Overall, the evidence is mounting that it doesn’t benefit companies to get involved in public discourse that’s going to split their stakeholders, Taylor told From Day One. “My strong impression is that people running companies are somewhat regressing because [getting involved] looked very convenient when it was Trump and climate change and immigration, but when it’s reproductive rights and Gaza, it is much less convenient.”“How quickly the pendulum swings,” wrote journalist and author Joanne Lipman in a post on LinkedIn. Lipman, who is currently a lecturer in political science at Yale, underscored the marked change in employer-employee relations. “Just a few years ago, in the wake of #MeToo and George Floyd’s murder, companies accommodated and sometimes supported protesting employees. Contrast that with today, when companies have had it with restive workers, and are cracking down on them instead.”Lipman has been a front-line witness to the about-face. As she continued on LinkedIn: “I happened to be at Google’s headquarters to give a talk on Nov. 1, 2018, the day of an historic company walkout to protest sexual harassment and workplace culture. The crowd was massive, permitted to assemble, and the company ultimately met some ... of its demands. A very different vibe last week, when Google fired 50 employees involved in a far smaller protest.”Of course, an exact comparison can’t be squarely drawn. The case could be made that employers can exert a greater impact on sexual harassment or discriminatory practices in their own workplace than on war overseas. The Economist made the case that even if major universities were to divest from their interests in Israel, the effect would be largely symbolic and have little to no effect on the actions of the Israeli government, Google’s Nimbus Project being an obvious exception.The events on college campuses and in tech-company offices reflect the coarser political climate writ large. Polarization in public is bleeding into polarization in the workplace. “The inability to seek out compromise and to seek out dialogue within Google is in itself a parallel process with the wider political discourse within the country,” said Higgins. ‘It Was Clear That Things Were Going to Get Pretty Messy’As early as 2018, Taylor was warning that the corporate-activism trend would not end well. “Scapegoating is inevitable,” she wrote for Quartz. By being outspoken advocates of one thing or another, companies were casting themselves in the role of public officials–and, alongside public officials, were blamed for polarization, terrorism, privacy violations, racism, and extremism. The problem is that businesses can’t necessarily do much about, say, terrorism.At the time, “short-term controversy around a political issue [was] a small price to pay for overall approval from the public and media,” she wrote. That’s no longer true. Backpedaling from overt involvement in public discourse, companies are now more likely to comment only on matters they can directly influence. But the precedent has been set, and workers are taking out their frustration on businesses. Transparency, once the mantra of companies and their publicly charismatic executives, has often been their undoing, especially when there’s a disconnect between their words and their actions.How inevitable was this clash? Precipitating events, like the Oct. 7 attack in Israel, aren’t necessarily predictable, at least by business leaders. But if it weren’t this particular event, it would be something else, Taylor argues. “Once companies have opened up this avenue of activism, an avenue of leaders speaking up, an avenue of leaders taking positions on things, then it was clear that things were going to get pretty messy, pretty quickly,” she told From Day One.How Companies Might Better Handle Differences of OpinionBy firing the sit-ins, the message was clear, Higgins said: Don’t tell us anything we don’t want to hear in a way we don’t want to hear it. “What Google has reinforced is very traditional command-and-control.” In his estimation, the company would be better served to ask, How can we all live with our disagreements?“Businesses do not operate in a vacuum,” Higgins said, and they should stop behaving as if they do. Unless they are willing to engage with their workers–sans terminations and law enforcement–leaders will trap themselves in their own echo chambers and ultimately drive discontent underground. “People will become extremely skilled at telling senior management what they want to hear. Meanwhile, they will get on with doing what they need to do.” As the leadership team grows increasingly out of touch with its workforce, discretionary energy will be funneled into maintaining a placid façade rather than innovating. Volcanic activity, of course, begins underground.Taylor doesn’t envision a return to an earlier time in which battles over politics were fought only in the political arena, no matter how much employers may want it. “Younger generations do not see the world this way, and then [companies] opened up Pandora’s box. It’s pretty hard to go back to the way things were.”Companies would be ill-advised to dismiss the agitations of younger generations, who are the harbingers of change. “They tell you about what’s shifting in social attitudes, and that tells you what your customers are going to value,” said Higgins. Instead, workers and employers must become comfortable with disagreement.“If two people never disagree, it means at least one of them is not thinking critically or speaking candidly, and that means both of them are failing to learn from the exchange that might happen between them,” organizational psychologist Adam Grant told Anne McElvoy on The Economist Asks podcast in 2022. “I think a lot of us are taught to argue to win; I think what we ought to be doing is arguing to learn.”Coloring the culture wars is “binary bias,” in which the people who agree with you are good and those who don’t are bad. “I think that’s really interfering with progress,” Grant said on the podcast. Where there are only good guys and bad guys, compromise is as bad as capitulation—and neither side wants to be defeated.In his Free Press essay, Berliner lamented that “diversity of thought” was unimportant in the NPR newsroom. This, he argued, has cost the institution the trust of the public.It could end this way, Higgins estimates: Companies continue to sort themselves into “red” companies and “blue” companies and workplaces will become more homogenous and further entrenched in their beliefs. “By and large, people will increasingly join companies that align with how they view organizations fitting in the world: those companies which see themselves as having a social role and those that say, ‘We are explicitly not going to play that game.’”But the only way out, he said, is curiosity. “How this will end, I hope, is that if people are serious about engaging with collective intelligence, if people are serious about taking organizational agility seriously, they have to double down on learning how to walk toward contention and difference.”Emily McCrary-Ruiz-Esparza is a freelance journalist and From Day One contributing editor who writes about business, work, and women’s experiences in the workplace. Her work has appeared in the Economist, the BBC, the Washington Post, Quartz, and Fast Company.[Featured photo: Tech workers from Google, Meta and Amazon protested against Big Tech supplying Israel with intelligence tools outside Google offices in Manhattan on April 16. Photo by Cristina Matuozzi/Sipa USA via AP Images] 

Emily McCrary-Ruiz-Esparza | May 03, 2024

From Day One Celebrates Its Fifth Anniversary

Half a decade ago, the news was erupting daily in an avalanche of headlines about Corporate America. A lot of those headlines were about scandals. About mistakes and injustice. These were not just mainstream media headlines, but also major stories emerging from digital media and social media. In fact, it seemed like for the first time everyone suddenly had a voice, and many of these voices were shouting. Many people within these companies were already committed to making positive change. But corporate values issues are often complex. They are typically interwoven with other business priorities, history, or plain old inertia. “Companies were being held accountable for their behavior in new and important ways, and it seemed like there was real, and possibly permanent change happening,” recalls From Day One CEO Nick Baily. “But then what? Even once you agree on a new set of values, there’s a lot of work to do in making them real.”  This was the historical turning point the three founders of From Day One were contemplating when they launched, exactly five years ago this month, the organization’s very first event, a one-day conference of hundreds of business leaders at BRIC House in Brooklyn, a place not previously known for business conferences. From the start, it was designed to be something different.The idea was that the country needed a “forum on corporate values,” a gathering of professionals to talk about the relationship between companies and their employees and communities. In other words, their stakeholders, rather than just their stockholders. The founders–Baily, Erin Sauter, and me–felt certain that we didn’t know the answer to these pivotal questions, but we felt equally certain that there were many people with inspiring, practical insight on these topics, and that bringing them together into the same room would be a positive first step.The first event was a hit. Speakers from companies including IBM, NBCUniversal and Condé Nast offered fresh ideas on “building a more purposeful team” and “setting your values and following them.” Sponsors ranged from AT&T to Con Edison to Eileen Fisher. Attendees, for their part, asked: What will you be doing for an encore?The three founders decided to bring the Brooklyn-bred idea to Chicago, Boston, and beyond. Five years later, From Day One has hosted 45 one-day conferences from Seattle to Miami. The pandemic produced an existential moment of doubt for the company, but necessity proved inspirational. From Day One has hosted more than 60 virtual conferences and 220 webinars. All told, more than 72,000 professionals in HR and related fields have attended From Day One’s events. This year, Inc. magazine recognized From Day One as one of America’s 5,000 fastest-growing companies. The audience at a From Day One conference in Atlanta; featured photo: a panel onstage in Seattle (Photos by From Day One)Since the company has taken a journalistic approach to its conversations, it has never lacked for topics. History-making events of the past five years provided fuel for conversations that From Day One’s founders never could have expected. To start with, the pandemic brought the remote-work revolution. As Harvard professor Tsedal Neeley told our virtual audience: “I am 100% convinced that, if we do this hybrid right and with courage, and we set our policies based on need and not fear, we’re preparing for the digital revolution that’s right around the corner.” She was prophetic about the challenge of getting it right.The murder of George Floyd inspired a push for racial justice in Corporate America that would prove to be fitful, but the conversation was groundbreaking. “All of a sudden, I was talking about this, and our employees’ eyes were opened. We’ve never really talked openly about racism before at work,” Hoai Scott of NBCUniversal told our audience in Los Angeles. As the pandemic eased, the pent-up demand for more rewarding and meaningful work triggered the Great Resignation that sent companies into a frantic search for talent, which has only somewhat eased. “Comparing where we are now to where we were pre-Covid, I think the employee is going to retain a lot of power,” AT&T executive Ben Jackson told our Dallas audience last year. In turn, the need to retain workers inspired a major push among companies for better learning-and-development programs. “Our vision is–and it’s very lofty–we want to redefine what education means in this country, full stop,” Walmart’s head of L&D said in a From Day One fireside chat.What may be the most consequential development of From Day One’s short life is a debate about not only the future of work, but the meaning of work in our lives. To be sure, our colleagues at Harvard Business Review, which celebrated its 100th anniversary last year, have been at this awhile. But recent years have turned this philosophical question into a competitive news beat for business reporters and thinkers like Anne Helen Petersen, who has spoken to From Day One’s audience about both of her recent work-focused books. She was early in raising the prospect that a flexible approach to work arrangements “could actually help us decenter work, just slightly, from its place of prominence in our world.”To offer such a vigorous schedule of events to talk about these issues, From Day One now has a team of 18 full- and part-time employees who’ve developed diverse areas of expertise in finding inspiring speakers, developing an engaged audience, staging well-run events, and helping sponsors grow their businesses.What’s next? From Day One is planning a rich assortment of live and virtual events for the rest of 2023 and all through 2024, including a conference next week in our neighbor borough of Manhattan. We hope you’ll join us for the next chapters of our story.Steve Koepp is From Day One’s chief content officer. 

Stephen Koepp | September 20, 2023

The Supreme Court and the Diversity Backlash: How Employers Can Respond Now

The backlash against diversity, equity, and inclusion (DEI) in corporate America is now in full swing. Conservative politicians have turned DEI programs into a campaign issue under the banner of anti-wokeness, with an increasing number of red-state legislatures seeking to ban DEI efforts altogether. Consumer boycotts have shaken name brands. Many corporate DEI budgets have been cut in the name of austerity, while surveys of employee sentiment show a rising tide of “diversity fatigue.” Many DEI leaders, who were given a mandate to help corporations “do better” in the realm of racial justice after the murder of George Floyd three years ago, have grown dispirited in their roles. In this environment, the U.S. Supreme Court’s 6-3 decision on June 27 striking down affirmative action as unconstitutional in higher education came as another blow to advocates of DEI efforts to make the U.S. a more equitable country. With the addition of three conservative justices by President Trump, the court’s action was widely anticipated by the academic community. But it was not only universities that were gearing up for the ruling. The business community was also expecting such a ruling; an impassioned friend-of-the court brief was filed by dozens of major technology, finance, and health care companies who support DEI efforts. Ranging from American Express to Walgreens, they pleaded with the high court not to come to the result that the majority ultimately did, because the named companies rely on “racially and ethnic diverse student bodies” to find their future workers.It is certain that there will be major workplace ramifications from the affirmative-action decision, even though that case applied to higher education rather than in the business world. (College admissions are governed by Title VI of the Civil Rights Act of 1964, whereas private employment is covered by Title VII.) Immediate questions arose in many workplaces about the consequences of the court’s ruling. Will DEI programs now be weakened or banned? Can race still be considered in employment decisions? And will an activist Supreme Court look for a suitable case in which to extend its controversial educational dictates to the workplace?Though the answers to those questions are not entirely clear at this point, legal and HR experts advise advocates of DEI to be proactive. Here are five essential steps that corporate leaders can take in this new, post-affirmative action world:Remind Stakeholders Why DEI Is Beneficial to EmployersThe corporate rationale for DEI has been twofold: not only is it morally right, but it brings benefits to corporate culture and the bottom line. “Study after study demonstrates that, across organizations, diversity enhances critical thinking, creativity and collaboration, as well as productivity, profitability and performance,” wrote Ford Foundation CEO Darren Walker last week in the New York Times. “It is a national tragedy that diversity is now a contested issue rather than a common interest.” Make Sure Your DEI Programs Aren’t in Conflict With Current LawsIt’s definitely time to review your current DEI framework in consultation with your legal team and employment-law experts. “Be sure your policies and programs don’t unintentionally run afoul of anti-discrimination laws and recognize that quotas and preferences–as well as perceived unfairness–can create legal problems,” advises the Fisher Phillips law firm. “You should also review your employee handbook and other written policies to ensure they are up to date, aligned with your goals, and legally sound.” New York University legal experts Kenji Yoshino and David Glasgow, authors of a new book on how to talk about DEI in the workplace, offer easy-to-follow instructions for a “self-audit” of current DEI initiatives to avoid unwanted legal exposure. They suggest using codes to sort programs as red (high risk), yellow (medium risk), and green (low risk). But they discourage making knee-jerk semantic changes to terms like DEI or diversity: “We think it is unnecessary to revamp the language in this field. Although the court held that the universities’ interests in achieving a diverse student body did not justify a race-conscious admissions policy, companies are still allowed to strive for a diverse workforce.” Take Prudent Steps to Avoid the Possibility of a Reverse Discrimination LawsuitThe number of corporate DEI programs surged after the 2020 murder of George Floyd and the social-justice movement that followed. The result has been a fierce legal backlash, with conservative politicians, right-wing activists, and red-state legislators working strenuously to challenge them. In the wake of the Supreme Court’s new ruling, this trend is expected to intensify. Andrew Turnbull, a partner at the Morrison Foerster law firm who represents companies in labor and employment litigation, told Axios, “When people hear affirmative action has been overruled, they may say, ‘Well, why is my company still doing diversity programs?” The decision is also expected to embolden conservative activists. Will Hild, the executive director of Consumers’ Research, a right-wing advocacy group, told the Washington Post that the ruling “will put the wind in the sails of groups like ours, who want to get the woke, racially based hiring and promotion schemes out of corporate America.” America First Legal, a group headed by former Trump adviser Stephen Miller, has recently filed complaints with the Equal Employment Opportunity Commission (EEOC), asking it to investigate corporate diversity and hiring practices at major companies such as McDonald’s and Unilever. And in June, a federal jury in New Jersey ordered Starbucks to pay a white former manager $25.6 million, finding that she had been fired became of reverse discrimination.Although reverse-discrimination cases are not a new phenomenon, the potential risk of these claims may be increased by the Court’s shift in position, as well as the political ferment. Employers now should educate themselves about state legislation targeted at restricting DEI initiatives, as in Florida and Texas and brace themselves for possible challenges. This is an area that may well benefit from a lawyer’s trained eye. Alvin B. Tillery, Jr., director of the Center for Study of Diversity and Democracy, cautions against overreacting. Tillery told the New York Times, “I do worry about corporate counsels who see their main job as keeping organizations from getting sued—I do worry about hyper-compliance.”Explore New Ways of Growing Your Job Candidate PoolCorporate America has become dependent on higher education to provide a pool of job-ready, diverse candidates. That flow is certain to be stanched in the future by the court’s affirmative-action decision. “I don’t believe that there’s a dispute that university demographics will become more homogenous and less diverse,” said Janine Yancey, founder and CEO of Emtrain, an inclusion-and-belonging consultancy. This will lead to “a smaller talent pipeline,” she told From Day One. It has measurably occurred already in the nine states that have banned race-conscious affirmative action policies, generally through ballot initiatives.This has been particularly true in Michigan and California. After California voters enacted a ban on affirmative action in 1996, the number of Black students at the elite University of California campuses in Berkeley and Los Angeles plummeted. Likewise, since Michigan voters ended affirmative action in 2006, the number of Black students at the University of Michigan has dropped dramatically.Employers will need to cast a wider net now to secure a diverse workforce. Rhonda V. Sharpe, the founder and president of a think tank on equity, the Women’s Institute for Science, Equity, and Race, sees a silver lining to such a result. Said Sharpe, “I will not shed a tear for affirmative action but will rejoice in the possibilities for Historically Black Colleges … and Hispanic Serving Institutions.”  In fact, the impact of affirmative action was mostly in elite universities. “The majority of Black and Hispanic students attend universities that accept more than three-quarters of their applicants,” wrote academics Richard Arum and Mitchell L. Stevens in the New York Times. “The current opportunity to bring racial equity to American higher education lies in a collective re-commitment to the quality and success of more accessible institutions.” Many DEI experts recommend that corporate HR leaders look even further upstream, investing in programs to develop underserved youth long before they make a decision about higher education. Put More Stress on Employee RetentionWith a less diverse candidate pool, experts see more problems retaining a racially or ethnically representative workforce. “No one wants to work in an environment where they are ‘the only,’” Janice Gassam Asure, the founder of BWG Business Solutions, a consultancy designed to help organizations create more inclusive environments, wrote in Forbes. She warns that the affirmative-action decision “will not only make it more challenging to retain the employees you already have, but it will likely be more difficult to attract new talent from underrepresented communities.”It is important to pay close attention to employee sentiment in the immediate aftermath of the affirmative action decision. Y-Vonne Hutchinson, the CEO of ReadySet, a DEI consulting and strategy firm, asserts that some employees may be unsettled by this decision: “Your employees, particularly those from historically marginalized backgrounds, may be experiencing anxiety, stress, sadness, fear, and disappointment right now. They may be struggling to process what this all means–for them, and their families.” Hutchinson urges companies to both “provide space” for those employees and provide support such as employment resource groups (ERGs) or extra mental health resources.Stalwarts like Iesha Berry, chief diversity and engagement officer and head of people experience at DocuSign, have no intention of giving in to the current political pressure against DEI. “It doesn’t change our focus,” said told the Wall Street Journal. Diversity is “not a stand-alone, and it’s not something that is the flavor of the day, but critically important to the business and the business success.” Andrea Sachs, a graduate of the University of Michigan Law School, began her career as a lawyer in Washington, D.C., at the National Labor Relations Board, then spent nearly 30 years in New York City as a reporter at Time magazine. She is currently the editor of The Insider, a weekly digital publication.

Andrea Sachs | July 05, 2023