“We don’t waver,” Salesforce Chief Equality Officer Lori Castillo Martinez told USA TODAY. “Equality is our value, and that is something we will continue to focus on, especially in these challenging times.”

Affirmative action decision will increase scrutiny of diversity programs

Coming as conservative groups push back against diversity programs and consumers vent frustrations over corporations becoming more vocal on progressive issues like LGBTQ rights, abortion and racial equity, the Supreme Court decision probably will invite greater scrutiny of the strategies companies use to increase diversity, according to Andrew Turnbull, a labor and employment partner at law firm Morrison & Foerster.

Federal law prohibits employers from considering race and other protected characteristics in employment decisions. Diversity, equity and inclusion initiatives, on the other hand, help employers make their workforces less homogeneous and their workplaces more inclusive by casting a wide net for qualified workers from different backgrounds, Turnbull said.

“We may see an increase in challenges to those programs because some employees may incorrectly assume this means that their employers can no longer have workplace affirmative action or DEI programs,” he said.

The debate swirling around diversity programs has increased the possibility that corporations will be hit with discrimination lawsuits – from those who support these initiatives and those who oppose them.

In the decade from 2011 to 2021, the number of reverse discrimination claims filed with the Equal Employment Opportunity Commission dropped from about 4,000 to 2,000 a year, according to data USA TODAY obtained from the EEOC. Though white people account for about two-thirds of U.S. workers, those claims made up about 10% of overall race-based discrimination claims.

Lawyers see an increase in reverse discrimination claims as GOP backlash escalates

But Turnbull says lawyers are seeing an increase in reverse discrimination claims. Earlier this month, a federal jury in New Jersey ordered Starbucks to pay $25.6 million to a former regional manager after determining that the company fired her because she was white.

As the GOP backlash increasingly targets the private sector, legislative challenges to diversity policies in red states are also proliferating, Turnbull said.

Much depends on how employers respond to the ruling, said Stanford law professor Richard Thompson Ford. Robert's majority opinion leaves room for colleges to consider how race affected an applicant's life.

"As far as I know workplace DEI is individualized, so even if the court’s logic were applied to workplace programs, it would not seem to prohibit the kinds of policies most employers use," he said.

Few employers engage in the type of affirmative action that was used by selective colleges and universities, according to Ford.

In employment, affirmative action means “acting affirmatively” to create an environment that is welcoming and fair to all workers and that encourages diverse candidates to apply for positions, said Christy Kiely, a labor and employment partner with law firm Seyfarth. Employment decisions are then based on merit, Kiely said.

“It is lawful for employers to affirmatively recruit people so that they have the widest range of applicants and pick the most talented candidates,” said Amalea Smirniotopoulos, senior policy counsel at NAACP Legal Defense and Educational Fund. “I don’t think that will change.”

Affirmative action is latest GOP target after CRT and ESG

Corporations have turned to diversity programs to right decades of lost opportunities for Black people and other groups who have been historically underrepresented, especially in leadership roles. Those efforts intensified after the killing of George Floyd in 2020.

Pledges from corporations to address racial inequities drew a sharp backlash, from legislation in GOP-controlled state houses restricting how corporations talk to employees about racism to the targeting of trillions of dollars in investments that take into account ESG, short for environmental, social and governance principles.

If there is any sense in these C-suites, companies will take this as the catalyst, the catapult, the warning they need to get back to not discriminating.

The Supreme Court ruling is a warning to corporate elites to stop foisting their liberal agenda on the nation, said Scott Shepard, director of the National Center for Public Policy Research’s Free Enterprise Project.

In August, the conservative think tank sued Starbucks executives and directors on behalf of a Starbucks shareholder, claiming that by setting hiring goals for Black people and other people of color, awarding contracts to diverse suppliers and tying executive pay to diversity, the coffee chain is engaging in racial discrimination.

Stephen Miller’s America First Legal has filed complaints with the Equal Employment Opportunity Commission asking for investigations into the hiring and employment practices at companies including Starbucks, McDonald's and Morgan Stanley.

“If there is any sense in these C-suites, companies will take this as the catalyst, the catapult, the warning they need to get back to not discriminating,” Shepard said.

Affirmative action ruling chilling effect? ‘I’m already seeing this downturn in DEI’

Natalie Gillard, who created Factuality – an employee training tool used by companies such as Google, Nike and American Express – says she’s worried the affirmative action decision will have a chilling effect, much like President Donald Trump’s 2020 executive order banning the U.S. government and federal contractors from teaching employees about systemic racism caused some private employers to pause training.

“I'm already seeing this downturn around DEI efforts in institutions, organizations and corporations,” said Gillard, who has lost business in Florida and Texas where public universities are barred from spending money on diversity programs.

Alvin B. Tillery Jr., director of the Center for the Study of Democracy and Diversity at Northwestern University, says he’s concerned about what conservatives may have planned next. He expects they will double down on efforts to rid the public sector of affirmative action, from government hiring to contracting.

“Supplier diversity programs and federal contracting − that’s the big prize,” said Tillery, founder of the 2040 Strategy Group, which works closely with Fortune 500 clients. “It's really about taking away set-aside programs and racial equity programs, including at the local government level. Those are things that have a much bigger impact on society than affirmative action at colleges.”

Will big businesses like Apple, Google, Nike and Starbucks back off diversity efforts?

Last fall, some of the nation’s largest companies, including Apple, Google parent Alphabet and Starbucks, filed briefs siding with colleges and universities that consider race as one of the factors in their admissions process.

"Racial and ethnic diversity enhance business performance," the companies told the Supreme Court. "Research and experience demonstrate that racial diversity improves decision-making by increasing creativity, communication, and accuracy within teams."

Our clients are coming to us, not saying how do we stop this, but saying, how do we educate our team around why this is still important.

Will corporate America shrink from diversity initiatives under growing pressure from the political right? Evelyn Carter, president of diversity firm Paradigm, doubts it.

A Bain & Company survey of CEOs showed that 85% of the nearly 300 business leaders view social issues − labor standards, human rights, DEI, health; and product safety − as “urgent” concerns for their companies. When asked about the primary role of their business, 60% said either creating “positive outcomes for society” or “balancing the needs of all stakeholders.”

“Our clients are coming to us not saying 'How do we stop this?' but saying 'How do we educate our team around why this is still important?'” Carter said.

Corporations are just starting to see the benefits from the progress they’ve made in diversifying their workforces and leadership, said Lanaya Irvin, CEO of Coqual, a think tank that researches workplace diversity, equity and inclusion.

Data shows that corporate America still has very little diversity, especially at the top.

White men represent 7 in 10 executives at the very top of the nation’s 100 largest publicly traded companies, according to a USA TODAY analysis of named executive officers. In fact, they are even more likely today than their grandfathers to be managers despite a diversifying workforce.

“It’s definitely not time to take one’s foot off the gas or to retrench,” Irvin said.

Nike CEO John Donahoe recently commended Bob Iger for standing up for Disney’s values in a spat over LGBTQ legislation with Florida Gov. Ron DeSantis, who announced his presidential campaign late last month.

Corporations should pick their battles but speak out on issues that are  “core to who you are,” Donahoe said.

For Nike, that means standing up for the values of racial and social justice, according to Donahoe.

“Our core consumer for the Nike brand, the Jordan brand, the converse brand, are urban Black and brown communities – that’s where sneaker culture started,” Donahoe said during the CNBC CEO Council Summit last month. “We listen to our athletes and to our consumer about what they care about, and they care about racial and social justice, and so we view that as core to who we are, core to our identity.”

This article originally appeared on USA TODAY: Affirmative action reversed in college. Next target: diversity at work