Racial Targets Aren’t Quotas, Says New Paper

“Racial targets remain legally defensible even after the Supreme Court has declared it unconstitutional for colleges and universities to consider race in admissions,” argues a new paper by a Fordham Law Professor. The paper, which is forthcoming in the Northwestern University Law Review, is the first since the Harvard decision to clearly address the legal status and defensibility of corporate diversity programs including goals.

The paper, which examined 901 companies, found that about 44% of public companies had some form of “racial target” – either closed-ended (specific goal and specific timeline) or open-ended (specific goal, but no specific timeline). Note that this refers to public targets only – not necessarily tied to incentive pay. Professor Adediran argues that as targets open opportunities for minorities without barring white advancement or maintaining racial balance, they are legally defensible. Additionally, the paper argues that targets are distinct from quotas because they are 1) private and voluntary programs unrelated to federal affirmative action, 2) so broadly defined that they can apply to a range of roles, and 3) non-binding and aspirational. Therefore, Professor Adediran concludes, a company can “ask a court not to evaluate targets under the same stringent standard as quotas, but instead evaluate them under a separate standard that prioritizes corporate discretion.”

Meanwhile, a new piece from Semler Brossy gives companies three possible “pitfalls” in DE&I efforts and ways to avoid them:

1. Knee-Jerk Appointing of CDO. Semler notes that 60% of Fortune 50 companies named a new Chief Diversity Officer in the past three years, and 60% of those appointments were external. This may have led to a situation where the CDO is left without sufficient resources or C-Suite support to effect change, as reported in a recent WSJ article titled “The Rise and Fall of the Chief Diversity Officer.”
   
   
2. Overly Narrow Success Metrics. The focus, particularly in incentive plans, has often been increasing underrepresented hires, but this fails to isolate the dynamics underlying the problem throughout the employment lifecycle (talent development, retention, engagement, promotional opportunities).
   
   
3. Setting Goals Without Data-Based Foundation. Perhaps most importantly, Semler points out that “at times, the excitement to demonstrate a deep commitment to progress can drive some organizations to make outsized promises without doing all of the homework on how that goal could be achieved.” Goals need to be reasonable given the available talent; otherwise, either the goal will not be met or it will be met in an unsustainable way.