“Ignoring race will not equalize a society that is racially unequal.”
Justice Sonia Sotomayor wrote these words in her dissenting opinion in Students for Fair Admissions, Inc. (SFFA) v. President & Fellows of Harvard College (Harvard). That case ended race-conscious admissions at U.S. colleges and complicated the work of corporate diversity, equity and inclusion (DEI). The legal gray area it created left many DEI leaders wondering how inclusive recruiting could work in this new race-blind landscape. However, Jonathan Osborne, former Federal Prosecutor and Managing Shareholder at Gunster, joined Fair360’s 2024 Top 50 event to share insights into the issue that DEI leaders could use to navigate the newly complex recruiting environment the ruling created.
Osborne began by outlining the details of the controversial case. The Supreme Court reached its decision partly by claiming that the racial categories used in college admissions were essentially arbitrary. Examples of “Hispanic” and “Asian” brought this claim into sharp focus.
“The CDC definition of ‘Hispanic’ includes a descriptor that a person of Hispanic origin can be of any race,” Osborne said. “On the other hand, the Supreme Court criticized the use of ‘Asian.’ In the Harvard process, it lumped together South Asians and East Asians and provided no room for distinction between them.”
According to the Court, these categories caused college admissions departments to do three things:
- Rely on racial stereotypes to create their understanding of racial groups.
- Pick winners and losers based solely on skin color.
- Use race to benefit some minorities but not others.
Using the Court Ruling as Feedback for DEI
The ruling in the affirmative action case was disheartening to many DEI leaders. But to Osborne, the Court’s decision was an opportunity for leaders to evolve their DEI strategies. It didn’t just alter the recruiting landscape, but also provided valuable feedback organizations could use to strengthen their DEI strategies. The proof that DEI is indeed under attack also highlighted ways to safeguard against those attacks.
“Please take this to heart and ask yourself, as you think about your policies and procedures in the context in which we find ourselves, the following questions. How does your company talk about diversity? What are your written goals, policies and procedures? Are you considering race in hiring or promotion? Are you using quotas? Are there any embedded stereotypes in your process that have to be unearthed? Your employee stories are powerful. Have you heard them?”
These questions can help organizational leaders move toward a more authentically inclusive DEI strategy. Rather than viewing someone as a product of their skin color, these strategies explore how someone’s experience as a racial minority has impacted their character and ability. Moreover, Osborne’s questions serve to protect organizations from attacks on DEI.
“When I look at this from the perspective of litigation, these are actually questions of proof,” Osborne said. “If a lawsuit is filed, it’s not just about what you believe. It’s not just about your passions. It’s about the evidence. If you’re not already prepared, now is the time.”
Pursuing Authentic Inclusion
Echoing the words of Justice Sotomayor, Osborne emphasized that this new approach to DEI is not about ignoring race. Instead, it is about pursuing racial equity by digging deeper into what inclusion means. Belonging is about more than meeting a racial quota. It’s about creating opportunities for those who might otherwise never be able to overcome barriers to success on their own.
“I owe everything that I have accomplished as a leader and as a professional to those people, those leaders ahead of me on this path, who have reached back and offered me an invitation, a seat at their dinner table,” Osborne said. “And those conversations over dinner, on the plane, over a cup of coffee, have changed my life over and over again. So, my question for you is, when we set aside just for a moment, the policies and the procedures and our plans, who is invited to your table?”
To learn more about the 2024 Top 50 event and to hear from other featured event speakers, visit our Top 50 event page!
