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Affirmative action ban raises stakes for tech industry

The Supreme Court's affirmative action ruling could change tech recruiting, prompting companies to broaden recruiting efforts and increase anti-bias training.

Addressing racial bias in AI calls for diverse development teams to identify problems others might miss. But a recent Supreme Court ruling could affect how the tech industry builds its workforces. This challenge could prompt the tech sector and others to shift recruiting and hiring strategies by enhancing anti-bias training for recruiters, widening recruitment efforts and revising interview tactics.

Major tech companies fought to preserve affirmative action in college admissions, but the court rejected their arguments and instead banned it altogether. The court's action raises concerns, especially for the tech industry. The ruling could reduce the pipeline of historically underrepresented college graduates from selective institutions such as Harvard University, a defendant in the lawsuit.

These same tech companies have also documented their shortcomings in hiring women and other underrepresented groups in their annual diversity reports. For instance, in the wake of the 2020 social justice movement, some IT companies committed to doubling Black employee populations, which are historically low.

Diversity in AI development is especially important in the tech industry because biased technology can have a broad effect on the economy. AI is used in credit models, facial recognition, natural language processing and hiring, among many other processes.

"Companies whose workforces are racially and otherwise diverse will be better equipped to identify and address any number of scientific and technological challenges," according to a Supreme Court brief from companies such as Microsoft, Verizon and Mastercard.

Although the court's ruling doesn't directly affect corporate diversity, equity and inclusion programs, it might embolden challenges to DEI business practices.

Legal and management experts see the court's decision affecting employers in several ways, including the following:

  • An increase in enterprise anti-bias training to ensure the best candidates reach the top.
  • Expanded recruiting efforts to attract more applications from underrepresented groups, especially if the court's decision decreases the number of candidates from underrepresented groups.
  • Changes to job interview questions that align with the court ruling that allows schools to ask students about adversity they overcame, including racial discrimination.

By law, employers can't consider race, gender or ethnicity when determining whether to hire a candidate -- no matter how compelling the business benefits, according to Jonathan Segal, an employment attorney at Philadelphia law firm Duane Morris. Employers can't set quotas or reserve a job for a particular race or gender. They even "need to be careful of goals that look like quotas," he said.

Rooting out bias in tech recruiting

Bias training might help ensure the most qualified candidates are hired and promoted, said Laura Leduc, a management professor at the James Madison University College of Business in Harrisonburg, Va.

"If the processes are truly unbiased, this will also naturally lead to greater diversity in hiring," Leduc said.

An example is symphony orchestras, which once hired primarily male musicians. But when they moved to blind auditions, where decision-makers couldn't see who was playing the instrument, women started being selected in greater numbers, she said.

"We have to find ways to get around our unconscious biases in order to hire the best people," Leduc said.

Hiring bias remains a broad problem. Last year, the U.S. Equal Employment Opportunity Commission (EEOC) noted that despite the social justice movement, the unemployment rate was 7.1% for Black workers, compared with 3.2% for white workers. The EEOC suspects AI-enabled hiring systems are contributing to bias and has raised the possibility of legal actions against HR vendors and employers.

In a recent study, the tech job matching platform Hired found that white job candidates have a better chance of being asked for an interview than Black job candidates. A 2021 study by Switzerland-based researchers found some similar patterns in hiring.

Expanded recruiting efforts

Legal and management experts said employers that want to increase employee diversity will work harder to improve their candidate pools. Doing so might mean contacting historic Black colleges and using third-party services specializing in recruiting people from underrepresented groups.

The Supreme Court ruling will prompt universities and employers to take "a hard look at what they are doing to try to ensure equity in the organization," said Pauline Kim, a law professor at the Washington University in St. Louis School of Law.

Employers can't take adverse action such as rejecting a candidate or firing an employee based on race, sex or some other characteristic, Kim said. But an employer can look at HR policies and practices to see if the company discourages certain candidates from applying or isn't reaching a diverse workforce in its hiring, she said.

Improving the diversity of the candidate pool is 'not harming any individual.'
Pauline KimLaw professor, Washington University in St. Louis School of Law

Improving the diversity of the candidate pool is "not harming any individual," Kim said.

She added that broadening hiring efforts could include increasing the number and types of colleges employers hire from. It also means considering candidates who might "have a nontraditional educational background that have the skills or can learn the skills that we need," Kim said.

If the employer seeks people with different characteristics, backgrounds, strengths and interests in a "broader way where a single characteristic like race is not driving the decision, then I think they're going to be fine in trying to build a diverse workforce," Kim said.

Tech companies outlined the importance of diversity in innovation in court filings in support of continuing affirmative action.

One brief that included IBM, Stanford University and MIT cited an incident that "illustrated the special contribution of racial and ethnic diversity." A Black MIT grad student "conducted pioneering research on algorithmic bias" after discovering that a facial recognition program didn't recognize her and only worked if she wore a white mask, the filing noted.

What should work for businesses is expanding recruitment efforts, according to Stephen Paskoff, founder, president and CEO of Employment Learning Innovations, a consulting and educational firm in Atlanta.

The risk of not doing the right thing is "losing innovation, losing the best talent, losing competitiveness, losing opportunities to expand your business in multiple ways and not recognizing demographic change," Paskoff said.

The adversity interview question

A third area of attention in hiring will be the types of questions posed to candidates.

In the Supreme Court's decision, there is nothing that prevents a college or university from giving a plus to someone who overcame adversity related to their race, according to Duane Morris' Segal.

Indeed, following the court's ruling, the White House called on colleges and universities to ask questions in admissions about adversity. That includes "personal experiences of hardship or discrimination, including racial discrimination, that a student may have faced."

Similarly, Segal said, employers "could consider adversity that someone may have overcome due to any factor, including their race."

But Segal warned that this type of question is not a risk-free approach. "Once you ask someone to describe adversity they've overcome, if you don't hire them, they also could say, 'The reason I wasn't hired is because of what I told you about myself,'" he said.

Another hiring approach is valuing diversity of thought and perspective rather than asking the question of who is the best cultural fit, Segal said.

Patrick Thibodeau covers HCM and ERP technologies for TechTarget Editorial. He's worked for more than two decades as an enterprise IT reporter.

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