Part I: Decoding the Attorneys General’s Letter to Fortune 100 CEOs
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On July 13, the Attorneys General (AGs) of 13 states wrote an open letter to the Fortune 100 CEOs, cautioning them against implementing race-based hiring and promotion practices. This letter ignited a passionate nationwide debate. Today, in Part I of this two-part series, I plan to decode this letter and its context. In Part II, I will explain how companies can respond. Stay tuned for the second part, which will be published later today.
The letter begins with a stark reminder, "We, the undersigned Attorneys General of 13 States, write to remind you of your obligations as an employer under federal and state law to refrain from discriminating on the basis of race, whether under the label of 'diversity, equity, and inclusion' or otherwise." This statement sets the tone for the rest of the document. The AGs warn that companies that continue to treat people differently because of their skin color will be “held accountable.”
Understanding the Background
The letter follows the recent landmark Supreme Court decision, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. In a historical turning point, the Supreme Court on June 29 declared Affirmative Action as illegal, effectively overturning its own precedent set back in 2003 with the Grutter v. Bollinger case. This ruling brought an end to race-conscious admissions across colleges and universities throughout the United States. Back in 2003, the nation's highest court upheld that race could be considered in college admissions, but only if it was narrowly tailored and justified by a compelling interest.
However, the tables turned with two separate rulings against Harvard College and the University of North Carolina. By margins of 6–2 and 6–3 respectively, the Court ruled that race-informed hiring violated the Equal Protection Clause of the Fourteenth Amendment and was thus unlawful. It's from this backdrop that the Attorneys General’s letter to the Fortune 100 CEOs emerges.
But were the Attorneys General right in their letter, or did they miss something?
Who Missed the Big Point Here?
Everyone. Including the AGs and colleges.
Diversity recruiting is not about hiring based on race, as the AGs’ letter makes it out to be. The fundamental tenet of diversity, or any other well-intentioned initiatives, for that matter, is first, do no harm. Recruiting on the basis of race does more harm than good—both to diversity initiatives and the very communities we strive to represent in the workplace.
However, it’s equally true that the concept of race-conscious admissions emerged with noble intentions. The aim was to address entrenched systemic imbalances and to ensure a more equitable academic landscape. It was, quite simply, an action that needed to be taken somewhere, somehow.
But the pathway to equity is rarely straightforward. While the intention behind race-conscious admissions was laudable, its execution by colleges often strayed off course. A number of factors contributed to this. For one, inconsistent interpretations of what such admissions should look like resulted in uneven implementation across institutions. Furthermore, these practices often devolved into a simple quota system, addressing the issue on a surface level without probing the deeper facets of educational inequality. Studies showed that race-based admissions worked more effectively than other race-neutral alternatives, such as location-based affirmative action. One such 2016 MIT study focused on Chicago Public Schools (CPS) showed that CPS's race-neutral system is only 24% and 20% as efficient at increasing minority representation at the top two exam schools compared to the race-based approach. Ultimately, the study concludes that no race-neutral policy can restore minority representation to previous levels without significant inefficiency. It further implies that there are considerable efficiency costs associated with banning affirmative action policies that explicitly consider race.
There's a reason why historically underrepresented communities are named so. It's absolutely fair that these communities deserve the right to have a seat at the table. Banishing race-based admissions, employment, and retention without an alternative in place is equivalent to going back in time and erasing our hard-achieved milestones, one at a time. This is something that needs real pondering.
But let’s face the facts. Now that affirmative action has been deemed illegal, the question remains: what should be the way forward?
The way forward remains as it always needed to be: increase diversity in legal, moral, bias-free, and ethical ways without harm. At JTC, we ask hiring leaders to understand the 3 whats to achieve this: what diversity recruiting is, what it is not, and what it should be.
What Diversity Recruiting Is
Diversity recruiting at JTC is based on two fundamental principles. The first involves establishing a standard that guarantees a company's candidate pools reflect the diversity of the workforce. The second principle involves eliminating barriers in the hiring process that prevent these candidates from getting hired. It’s not just about proactive measures to increase diversity (like sourcing) but also about discontinuing practices that hinder it. The goal is to ensure that a diverse range of candidates have equitable opportunities to apply for open positions and progress through the hiring process while being evaluated fairly. Here, the premise is that a more diverse candidate pool and the elimination of hiring biases will lead to increased diversity in interviews and, ultimately, in the workplace.
What Diversity Recruiting is Not
Diversity recruiting isn't what some people make it out to be.
First, it's not some scheme to hire only Black and Latinx folks. It's about ensuring representation in areas where it's historically been lacking. This can mean different things for different organizations. Some might need more men, others may want to focus on veterans, and for some, it might be about getting more Black women into leadership roles. Each company's diversity needs are different, and the strategy should reflect that.
Second, diversity recruiting is not the same as affirmative action or quotas, which are, by the way, illegal. Sure, it makes it easier for everyone to apply and get a fair assessment, but it doesn't promise anyone a job. The hiring team's job is still to pick the best candidate for the role, regardless of how they identify.
Third, it's not “reverse discrimination.” There’s no such thing as “reverse discrimination.” Discrimination is discrimination, regardless of who is on the receiving end. Diversity recruiting is about cultivating a candidate pool that reflects the representation of the workforce. It’s not about turning tables on discrimination.
Fourth, it's not about charity or making exceptions. Underrepresented groups don't need handouts or special treatment. They don't need rule-bending. They need employers to notice the bias, disrupt it, and remove it. Diversity recruiting is not about giving certain candidates an edge. It's about removing the obstacles that place them at a disadvantage.
Finally, it doesn't mean sacrificing quality or lowering the bar. Diversity recruiting doesn't mess with meritocracy. It evens out the playing field so everyone gets an equitable chance to show what they can do and be chosen based on their skills and abilities. If the hiring process is riddled with bias, you can't truly gauge the talents and abilities of folks from historically underrepresented populations.
Hiring on the basis of race, often referred to as racial preference or affirmative action, can raise several issues, despite that its original intent was to promote diversity and overcome historical inequalities. Here are a few reasons why any identity-centered hiring or promotion is not the best approach:
Undermines Meritocracy: One of the principles of fair employment is hiring based on an individual's qualifications, skills, and ability to perform the job. Hiring on the basis of race can undermine this meritocratic principle, which raises questions about the legitimacy of an individual's position.
Potential for Stereotyping and Tokenism: Hiring based on race or any other identity could reinforce negative stereotypes, as individuals may feel they were hired because of their identity and not their skills or qualifications. This can also lead to tokenism, where diversity serves with a performative goal, not for genuine inclusion.
Does Not Address Root Causes of Inequality: Hiring based on race is a somewhat superficial solution. It does not necessarily address the systemic issues causing racial disparities in education, wealth, and opportunities, which are the root causes of inequality in the workplace.
Is Illegal: As of recent Supreme Court rulings, it's illegal to make hiring decisions based solely on race. Laws like Title VII of the Civil Rights Act of 1964 prohibit employment discrimination based on race, color, religion, sex, or national origin.
What Diversity Recruiting Should Be
Normalize diversity recruiting. In other words, in an ideal world, diversity recruiting would just be recruiting. Normalizing it means that it should be standard practice to make sure hiring is equitable and bias-free and candidate pools are well represented. But we're not there yet. We still need to highlight terms like "diversity" because it's necessary. Tagging "recruiting" with "diversity" is a lot like tagging "colleges and universities" with "historically Black." It reminds us of past discriminatory policies that led to colleges, universities, and workplaces that were largely White. We have diversity recruiting because there was a time when jobs were mostly for White men, and we have Historically Black Colleges and Universities (HBCUs) because there was a time when only wealthy White men could attend certain schools.
In a true sense, increasing diversity in the workplace boils down to this simple formula: a well-represented candidate pool plus an interview team with eliminated bias equals the selection of the most competitive candidate.
That is,
No identity politics here. No affirmative action. No quotas.
However, this formula, while simple in concept, requires intentional action and commitment to fully implement. The most beautiful thing about diversity recruitment is—when ensured, it brings along all members of the human spectrum, which includes people from different races, ethnicities, countries of origin, gender, religion, occupation, and neurodiversity, among others, with intention.
Diving into Diversity 101? We've got tons of resources waiting for you! From comprehensive guides to in-depth articles, you can download and explore at your own pace. If video content is more your style, don't worry, we've got you covered. Visit our Diversity Recruiter Central here, where you can access all videos for free.
