Supreme Court's affirmative action ruling could affect corporate diversity policies in Minnesota

The U.S. Supreme Court's ruling to ban affirmative action on college campuses is pushing some Minnesota employers into unusual silence, while others double down on company racial diversity efforts.

The court's decision only affects elite universities with race-based admission policies. But employment experts and companies worry that the ban on race-based school admissions decisions could one day spill into the corporate arena.

Some attorneys say employers are concerned the ruling could embolden a backlash, propelling lawsuits. Others worry it will narrow their pipeline of minority job candidates who enter and graduate from elite schools.

"I would expect that general counsels at corporations are carefully reviewing this affirmative action decision," said University of Minnesota anti-discrimination and constitutional law professor Jill Hasday. "I think there's a potential for a chilling effect."

Companies such as U.S. Bank, Target and Best Buy boldly pledged greatly expanded recruiting, hiring, training and loan programs for people of color following George Floyd's murder in May 2020.

Since the high court's ruling, though, some companies have been uncharacteristically quiet about diversity programs. Others have said they will forge ahead.

"It doesn't change what we are doing," said Kit Brady, vice president of people strategy at Gillette Children's Hospital. About 20% of the St. Paul-based hospital's 1,450 workers are people of color.

Gillette wants more.

"We do have a goal to increase the diversity of our workforce. and we have been steadily increasing there," Brady said.

Last year, Gillette needed 150 more workers. It partnered with the Center for Economic Inclusion, the Black Business Enterprises, the Minnesota Black Nurses Association and others to find and hire more minority job candidates.

"Our patients and their families right now are more racially diverse than the workforce serving them. In order to have the cultural and linguistic knowledge on our team, having a workforce that [racially] reflects our patients and families is important to us," Brady said. "We recognize that our state has some income and educational inequalities and we need to be part of the solution."

Minnesota has some of the highest racial disparities in the country in employment and education. Efforts to shrink the gap increased after Floyd's murder and civil unrest.

Employers who embrace affirmative action to remedy past discrimination and disparities still have the law on their side, according to Title XII of the Civil Rights Act, said attorney Charlotte Garden, who teaches labor, employment and constitutional law at the U.

But they need to be careful in re-evaluating programs, she said.

"Failing to take action when you notice either past discrimination or you notice manifest imbalances? That could also give rise to litigation." she said. "So employers should keep focused on the bigger picture rather than getting tunnel vision about this one [court] decision."

Attorneys note that most large employers are double-checking their recruitment policies and language surrounding race.

"Corporations with an affirmative action program would necessarily be more worried about potential liability in the wake of the Supreme Court's affirmative action case on university admission," Hasday said.

She added it remains to be seen if anyone actually sues an employer over race and if the high court would hear the case.

Tawanna Black is concerned.

As the shock over Floyd's murder softens with time, the CEO and founder of the St. Paul-based Center for Economic Inclusion noted "just in 2022, we've already seen some firms signal intentions to do less as it relates to ensuring their practices are truly getting at racial equity, economic equity."

With the court ruling, "we'll see some [firms] who either had good intentions but were not successful yet [diversifying hiring] say, 'OK, great, now we can pivot to something else.' Or there will be others, who may not have had the best of intentions, see this as a way to stop a movement toward equity that we've seen building and building," Black said.

In a statement, Charlotte Burrows, chair of the U.S. Equal Employment Opportunity Commission, said the Supreme Court decision "effectively turns away from decades of precedent and will undoubtedly hamper the efforts of some colleges and universities to ensure diverse student bodies. That's a problem for our economy because businesses often rely on colleges and universities to provide a diverse pipeline of talent for recruitment and hiring. Diversity helps companies attract top talent, sparks innovation, improves employee satisfaction, and enables companies to better serve their customers."

Mortenson Construction, which built Target Field, U.S. Bank Stadium and Huntington Bank Stadium in Minneapolis, declined to make officials available for an interview. It has initiated several efforts to diversify its workforce and supplier network and also has invested heavily in the communities hit hard by the riots following Floyd's death.

In a statement, the company said: "Building teams and leaders who reflect our diverse communities is something we strongly believe in. Our commitment to creating a diverse and inclusive workplace remains unchanged."

U.S. Bank officials also declined to be interviewed, but released a statement saying, "We want to emphasize that we remain committed to our DEI efforts and U.S. Bank Access Commitment work, [which is] focused on closing the wealth gap."

The Minneapolis-based bank injected $321 million in loans and grants into Black-owned businesses last year (up from $197 million in 2021) and spent $487 million with Black suppliers (up from $194 million).

The impact of the court's affirmative action ban on colleges is limited, Hasday emphasized.

The ruling affects applicants at Harvard, the University of North Carolina and roughly 200 similar highly selective, elite schools, that admit just a fraction of their applicants, Hasday said. "Most people don't go to selective colleges."

That leaves uncertainty for policies in other settings.

"I don't want to say it's not inevitable that the Supreme Court will extend this affirmative action decision in the university admissions context to every possible context as well. That's all in play. But how far they go? It's not for sure," Hasday said.