Navigating DEI in a Post-Affirmative Action Landscape

Backlash against corporate diversity, equity and inclusion (DEI) initiatives quickly followed the U.S. Supreme Court’s 2023 decision to end affirmative action in college admissions. However, a recent poll from The Washington Post and Ipsos found that about 60% of Americans believe DEI programs are “a good thing” for companies to adopt.

In the recent Cornell Keynote webcast “DEI, Affirmative Action and a Politically Polarized Workforce: Where We Are, Where We’re Going and What Employers Should Do,” David Sherwyn, the John and Melissa Ceriale Professor of Hospitality Human Resources at the Cornell Nolan School, hosts Paul Wagner, shareholder and chief financial officer of Stokes Wagner, and Holly Lawson, Noble House Hotels & Resorts’ senior vice president of human resources, for a discussion of the legality and structure of corporate DEI programs.

The Civil Rights Act of 1991 amended Title VII of the Civil Rights Act of 1964 to allow mixed-motive discrimination claims. What is mixed-motive discrimination, and how does it pertain to DEI?

Wagner: “The 1991 amendment took the burden of proof from race or another protected class being the sole motivating factor . . . to simply a motivating factor. Congress significantly lowered the bar so that if an employer made an employment decision and was influenced by a nondiscriminatory, nonprotected class-based reason — such as disciplinary action by the employee or something on their resume that caused them not to hire — but the plaintiff could show that race or gender or religion or any other protected class crept into their decision as simply an element, the decision was still unlawful.

Opponents of DEI scrutinize these policies under the same amendment. You can trace today’s backlash to overaggressive DEI policies of employers in the ‘80s, ‘90s and 2000s. Perhaps as written, they were lawful, but as implemented and interpreted by the person in the interviewing room making the decision, if they had a DEI policy that was encouraging the hiring of underrepresented groups, whether it be gender, race, et cetera, they took that and interpreted it as a mission to choose that underrepresented candidate, regardless of how they stacked up against the other candidates.”

Was this law intended to protect against all discrimination or just discrimination directed toward underrepresented groups?

Wagner: “Definitely the latter because if you look at the Civil Rights Movement in the ‘60s and beyond, it was clearly to address [discrimination against Black Americans]. However, the law was not written in a way that said only the groups that had suffered from historic discrimination are actionable plaintiffs and have standing to bring a claim. It protects all of us, whether we’re in a traditionally underrepresented or discriminated against class or not.”

Sherwyn: “I agree with you completely. The purpose of the law is clear. In ‘64, it was a way to open doors previously shut by law, but it was not how it’s being applied in this conversation. The law was written with the goal of a colorblind society, and that’s how it’s applied.”

How do you build a diverse workforce without creating problematic or easily attacked DEI policies?

Lawson: “If you create a program from a place of fear — whether from legal or internal or external backlash — you’re not going to get to the core of the importance of the program. Noble House is a family-led organization within hospitality; within a family, there is inherently a sense of inclusion. We really do feel like our true north is having a culture of inclusion and leaning into that.

Last year, our program was more training-based and discussion-based, whereas this year, it’s more goal-oriented and action-based. We are emphasizing diversity, recruiting and representation at leadership levels, and representation in our partners and vendors. Next year, we want to get to a place where we can measure that action.”

How can HR professionals open doors for more diverse job candidates?

Lawson: “A lot of us within hospitality are focusing more on historically Black colleges and universities and, in general, visiting a larger network of college campuses. There’s also a great organization called Tent, which the founder of Chobani started, that emphasizes assisting refugees and getting them lawfully working in the United States. Labor professionals are thinking, ‘Where were we not looking before? What were we not thinking of? Where were we not going? How can we get amazing talent from those partnerships and opportunities?’ It’s been amazing to see more people and connect with them.”

Are there any legal issues with these recruitment approaches?

Wagner: “As described, no. Opening up your potential sources of applicants to nontraditional sources to attract qualified applicants from those groups is great. However, implementation can be problematic if interviewers give preference to minority applicants to meet diversity goals. An interviewer must take meticulous notes during the recruitment process to prove they expanded opportunities for some underrepresented groups, brought in qualified applicants and ultimately hired the best person among the group.”

How do you respond to the criticism that DEI programs are forms of charity work, and what is the inherent value of these programs?

Lawson: “At Noble House, we’ve focused on the inclusion part to gather the diversity part. We want people to feel included. We want them to tell others about our culture and that they feel included. Naturally and organically, we want these people to bring others in who see themselves represented and continue to contribute to that because it’s the right cause. It creates a higher performing culture, and it’s not for any accolades or pat on the back or to check a box. If that’s your intent and purpose, I think people see through that, and you’re probably going to work backward in your process.”

Wagner: “My point of view is that the culture war scrutiny — mostly from the right — of DEI programs accuses them of being a charity case. That’s the way that group describes them and how it attacks them. But I agree with Holly that these programs have great value, and their goal is to reach out to, attract and ultimately hire qualified candidates from those underrepresented groups. If we do that under a modern DEI program and have the evidence to prove we’ve done it, we’re still okay, despite the accusations from the right saying that this is a charity case or somehow unlawful.”

How can labor professionals ensure that discussions and decisions on DEI initiatives are genuinely inclusive and representative of all communities, especially those historically marginalized?

Lawson: “You have to intentionally allow space for others to speak up and drive DEI programs. At first, we grappled with whether to ask certain individuals to make it very specifically diverse. In some cases, we have; in others, we’ve said let people speak up. We’ve intentionally created some space and drew some people in that we wanted their voices to be heard. I think the success of your program hinges on having a representation of the voices that champion this message.”

How do you ensure that employee resource groups (ERGs) promote inclusivity rather than exclusivity within an organization?

Wagner: “If you allow self-determination among employees to create ERGs and become exclusive, that leads to a lot of problems. I’ve seen a lot of very informal ERG policies at many of my clients’ companies and some that are structured. I like the ones that are more structured and intentional by the employer so that you are driving for maximum inclusivity. The groups can be specialized when it comes to certain things, like people who are interested in the safety committee.

But when it comes to these issues of DEI, I’d recommend and much prefer an ERG where inclusivity of anyone in the workforce is the principal maxim. I think you have to really look at it with a critical eye of how is this going to support my DEI program, how is this going to support my culture, and most importantly, how am I going to get my employees to feel good about it? We want them to participate in a positive way and not see this as a series of little exclusive country clubs.”

What does the forecast for DEI programming and affirmative action look like for the near future?

Lawson: “It’s really important to allow different voices with different perspectives to guide DEI conversations. I don’t know what our DEI programming will look like two years down the road because I want our actions to guide that. I want to hear from other people what’s working and what sticks and let that guide our next step. I don’t want to be marred down by the polarized world we live in where you’re damned if you do and you’re damned if you don’t, but rather continue to move forward and progress our policies without fear or concern.”

Wagner: “Traditional affirmative action means to go out and hire on the basis of a protected class to meet your goals or to redress past harms. Going forward, though, I predict that the executive order administered by the Office of Federal Contract Compliance Programs will be deemed unconstitutional. I would encourage employers to focus instead on DEI programs because, if designed correctly and monitored and implemented well, you’re going to continue to withstand the scrutiny and win lawsuits or hopefully avoid them. As much as there are forces from the right in these culture wars attacking these programs, there are forces in favor of diversity and a multicultural society. For instance, look at all of the gender pay equity laws that are cropping up all around the country. I want to make sure that my clients who want to achieve those diversity goals withstand the scrutiny and win at the game because it is a game worth winning.”

To learn more about creating an inclusive work environment, explore Cornell’s HR in Hospitality, Hospitality Labor and Employment Law or Business Law programs — all authored by David Sherwyn — or one of our Diversity & Inclusion certificate programs.

This Q&A has been edited for length and clarity. Experience the full Keynote for “DEI, Affirmative Action and a Politically Polarized Workforce” on the eCornell website.

Cornell Keynotes podcast: Combining right brain and left brain thinking as inventors, entrepreneurs and intrapreneurs

Outline of the human brain with colorful paper chips inside

The entrepreneurial mindset is for everyone, from aspiring inventors to corporate managers.

In a new episode of the Cornell Keynotes podcast from eCornell, Richard Cahoon, a professor at the Cornell College of Agriculture and Life Sciences, explains how we can combine the creative and analytical parts of our minds—the right brain and left brain—to give our ideas life and longevity.

Read more on the Chronicle.

Cornell Keynotes podcast: Drive sales and marketing success with AI and academic theory

Photo of Clarence Lee

How can you leverage generative AI today to reach key goals in the workplace?

As co-founder of Eisengard AI, Clarence Lee spends his workdays examining how businesses can leverage cutting-edge artificial intelligence (AI) technology to improve their workflows. The use cases for marketing and sales are abundant — from copywriting, A/B testing and customer relationship management to pipeline operations, pitching and cold call strategy.

In a new episode of the Cornell Keynotes podcast from eCornell, Lee, also a former professor at Cornell’s SC Johnson College of Business, shares how companies can apply academic theory to create AI business frameworks for those routine lead- and revenue-generating practices.

Read more on the Chronicle.

Cornell Board of Directors Forum set for October in NYC

Cornell live immersion program participants engage in discussion

From geopolitical instability to artificial intelligence (AI), companies are facing an increasingly complex business environment that presents both challenges and strategic opportunities. Following the success of last year’s program, the 2024 Cornell Tech Board of Directors Forum – slated for Oct. 29 and 30 in New York City – is designed to provide corporate leaders with critical skills and actionable insights to bring to their boardrooms.

According to LizAnn Eisen, faculty director for the forum and acting professor of the practice at Cornell Law School and Cornell Tech, the program will cover cutting-edge governance issues and research, delivering leading-edge frameworks and best practices for addressing critical issues.

Read more on the Chronicle.

Beyond winning and losing: Reframing negotiation as a collaborative journey

Mastering negotiation is essential in both personal and professional settings. While typically perceived as a win-lose battle, reframing negotiation as a collaborative process can allow all parties to reach their desired results.

In a recent Cornell Keynotes webcast, “The Art of Negotiation,” Tarcisio Alvarez-Rivero, a lecturer at Cornell’s Jeb E. Brooks School of Public Policy and retired senior staff member of the United Nations, shared his strategies for successful negotiation, including approaching negotiations with empathy and recognizing the underlying interests of your counterpart.

How can people view negotiations as opportunities for mutual gain instead of confrontations?

“When you shift your view to make negotiation an exercise in cooperation, you get to the point where you understand why the other person is there, what they need and why they need it. Oftentimes, depending on how well you prepare and who the other person you’re talking to is, I recommend telling the other person, ‘I want this because of this.’ Sometimes, a show of vulnerability puts a little bit of onus on the other person to be just as vulnerable and just as honest.

You need to give the other person space to be in their position. It’s okay for them to want what they want for the reason that they want. You’re not there to judge them. You’re there to try to find a way to satisfy your and their respective interests as much as possible. And that’s your purpose in negotiations. It’s not extracting value. It’s you getting value.”

How can you turn an adversary into a partner during negotiations?

“Part of being a good negotiator is having a significant amount of humility. When my U.N. team dispatched me to Germany to ask for funding, my job in that conversation was to – as quickly as possible – establish why the woman in charge of funding gave me an audience. What was the need she was hoping we’d satisfy? After asking her a few questions, I understood that their business model was changing and that they were being encouraged to find more partners in the field as opposed to having their own teams in the field.

Once I realized that she was talking to us to explore if we would be good partners, the conversation shifted. I was no longer looking for money. Now I’m looking for a partner. So, what I chose to talk about from that moment on was completely different from what I prepared. But it was from the point of humility to understand that I wasn’t entitled to have that conversation. She wanted me in the conversation. It was my job to figure out why she wanted me there.”

How can you prepare to negotiate when you share little common ground with the other party?

“Most people have online profiles. At some point, I realized that if I went into people’s – back then, Twitter, now X – or any other account, I could learn a lot about them. In particular, you learn a lot about them in their use of emojis. Emojis tell you whether they like something or they dislike something. They don’t have to write it. They just have to show you the face.

I found that one person I had to negotiate with liked dogs, and I grew up with dogs, so we had something in common. I realized I could now talk to this person at a level that I would otherwise not have known. If the situation got to the point where there was nothing to talk about, I could talk about dogs. So that’s one opportunity that you have to sort of soften the situation.”

How do we account for profound cultural differences among negotiating parties?

“I always recommend creating a persona for the person you’re dealing with. Depending on the culture, you will find that certain things are more or less a pattern. For example, certain cultures are more fixed on timing, right? They want to start at a specific time, finish at a specific time. They want structure in the negotiation. They relish more formal conversation than informal conversation. In some cultures, people like negotiating more in groups or not making decisions immediately. Some people value a handshake more than a written contract. Those things tend to run on a cultural basis.

Now, you’re also talking about biases. And you also understand that certain cultures come with certain sets of biases. It doesn’t mean that you bless the bias. It just means that you accept the fact that you might hear something from that person that sounds like a bias to you. But if you’re prepared to hear it, then you know how you’re going to react to it.”

Why is it important that negotiators view compromise as a last resort?

“Compromise is when we give up 10% and get nothing out of it. If you offer someone a 10% discount and they immediately accept it, you start wondering, ‘Did I give up too fast?’ It is completely unnecessary to compromise as a default position.

If you prepare correctly, make an effort to understand where the other person is and know where you want to be, then there’s a lot you can do to avoid that moment of compromise. Compromise should only occur with full awareness that you did everything you could to avoid that process, but I don’t recommend it.”

How can negotiating parties avoid a power struggle in their conversations?

“I always recommended standing up, getting coffee. I like walking with somebody. I like having a situation where people are not fixed to the ground. They tend to take positions if they’re sitting across the table from you. They don’t take the same position if you’re just talking to them with a coffee in your hand.

Most of the time, I recommend going to a neutral place that’s nice and close to food so that people relax. Then, you can have a different level of conversation. Putting somebody on the defensive by taking them to your own office is probably going to be counterproductive.”

Interested in learning more? Explore Tarcisio Alvarez-Rivero’s Negotiating Policy Solutions course offered by eCornell. For a deeper dive into negotiation skills, consider eCornell’s certificates Persuasive Communication or Negotiation Mastery.

This Q&A has been edited for length and clarity. Experience the full Keynote for “The Art of Negotiation” on the eCornell website.

Cornell Keynotes podcast: Current trends in generative AI tech

Handshake between a human hand and a robot hand, each extending from laptop computers

Each day brings a new headline on artificial intelligence. Which stories should capture our attention and which are just clickbait?

In a new episode of the Cornell Keynotes podcast from eCornell, Karan Girotra — the Charles H. Dyson Family Professor of Management and professor of operations, technology and innovation at the Cornell SC Johnson College of Business and Cornell Tech — explains the current capabilities of AI and shares the most newsworthy updates about the technology.

Listen to Episode 35, AI Today: Current Trends in Generative AI Tech and read more on the Chronicle.

Cornell Keynotes podcast: Are noncompetes really dead?

Professor Stewart Schwab discusses Robert Katzmann's book "Judging Statutes" at a 2016 Book Talk.

When the Federal Trade Commission’s recent ruling takes effect in September, noncompete agreements will be over. Or will they?

In a new episode of the Cornell Keynotes podcast from eCornell, Cornell Law School professor Stewart J. Schwab and host Chris Wofford discuss the history of noncompetes and why the FTC might not have the final say.

The FTC estimates that one in five American employees are bound by noncompete agreements that impose time or location restrictions on their ability to pursue work with or create competitor companies. In April, the FTC issued a rule banning noncompetes with the intent to “generate over 8,500 new businesses each year, raise worker wages, lower health care costs and boost innovation.”

Will a court issue an injunction against the rule? Does the FTC even have the power to make the call on noncompetes?

Listen to Episode 34: “Are Noncompetes Really Dead?” and read more on the Chronicle.

Leaders expand management accounting expertise in new certificate program

Global businesses often wrestle with operational inefficiencies and overlook critical touchpoints that can turn those challenges into opportunities. Expanding management accounting operations is one such avenue for improving business efficiency – not just with a finance-oriented approach but through a leadership lens.

Designed by Robert Bloomfield, the Nicholas H. Noyes Professor of Management at the Cornell SC Johnson College of Business, the Management Accounting for Leaders certificate program aims to change the perception and application of accounting by bridging theoretical knowledge with tangible, actionable insights. Bloomfield hopes “to endow students with a superpower to deliberate and find ways to improve accountability systems.”

The program offers practical tools to identify, analyze and rectify inefficiencies that are pervasive in modern businesses. Central to this unique approach are the “deliberation guides” – theoretical constructs and hands-on tools designed to help accounting professionals and senior leaders improve their businesses and honor accountability as a core value.

Bloomfield explains, “for every module in each of these six courses, there is a deliberation guide that they can download and take back to their team and walk through the steps to make improvements.”

Through case studies, the coursework exemplifies strategies for enhancing performance metrics such as profitability, efficiency and employee motivation while fulfilling stakeholder demands. Courses include:

  • Improving Governance
  • Improving Margins
  • Improving Capacity Investment and Consumption
  • Improving Coordination and Efficiency
  • Improving Direction, Motivation, and Society
  • Accountability in the Fourth Industrial Revolution

The program takes a broad view in the “Fourth Industrial Revolution” course that explores artificial intelligence, managing remote workers and navigating new business opportunities as they present further accounting possibilities.

Designed for leaders at all levels, from CEOs to new managers, the program offers insights not just for accountants or financial experts, but for anyone looking to enhance their organization’s operational efficiency.

“The program uses a general framework that applies to any type of organization and accountability for any type of performance. It’s incredibly versatile,” Bloomfield said.
Bloomfield emphasizes that his approach offers a unified framework for problems that allows leaders to address a wide range of issues.

“Management accounting was originally developed for addressing concerns about financial performance, entirely for the benefit of investors. That’s not enough for leaders, who must now address concerns about social, environmental and even moral performance, for the benefit of communities, employees and countless other stakeholders,” Bloomfield said. “This program helps leaders address any concern for any stakeholder as Cornell supports ‘… any person … any study.’”

Enroll in the Management Accounting for Leaders certificate program and unlock a framework for improving accountability and operational efficiency in any business.

Cornell Keynotes podcast: The American South braces for a huge unionization push

Auto worker using tools on metal car parts

Will auto industry unionization in Tennessee and Alabama galvanize a new labor movement in the South?

In a new episode of the Cornell Keynotes podcast from eCornell, Andrew Wolf, a professor of global labor and work at Cornell’s ILR School, joins host Chris Wofford to discuss the opportunities and challenges ahead for both auto manufacturing companies and labor organizers.

Unionization is shaking up the auto industry, delivering meaningful gains toward fair pay and other benefits for workers in the U.S. The efforts are particularly significant in the South where a legacy of racist labor laws continues to propagate disparity within the workforce.

Listen to Episode 32: “The American South Braces for a Huge Unionization Push” and read more on the Chronicle.

Applied Machine Learning certificate prepares professionals for data science careers

Neuron illustration

Effective data analysis can make all the difference for a company’s efficiency. Advances in machine learning (ML) have helped data scientists harness the power of artificial intelligence (AI) and take their analysis to the next level. Brian D’Alessandro, head of data science for Instagram’s Well-Being and Integrity teams and author of Cornell’s Applied Machine Learning and AI certificate program, has 20 years of experience in ML model construction. D’Alessandro spoke to the eCornell team about the certificate, ML instructional approaches and career paths. 

What can students expect in the program?

“Even when students have learned how to build a model, I would argue that they haven’t learned to build a good model yet. There’s an empirical process required in tuning model parameters such that you get the prediction quality that you’re looking for. So, in this certificate,  we ensure students learn how to build a strong, basic model . . . how to tune it and validate it, and then we start to introduce more complex algorithms that are more often used in industry settings. We cover K-nearest neighbors, decision trees and linear models – the full spectrum. Throughout the program, we emphasize the consistency of the API across different machine learning algorithms.”

Are any important aspects of working with ML frequently overlooked?

“I really like to emphasize digging into data first before learning algorithms. The cliche at this point is “garbage in, garbage out,” and that’s very true for machine learning. So what I want to do here is build an appreciation for what will ultimately be 80 to 90 percent of the workload, which is data preparation. We emphasize the importance of it. [We] don’t dismiss it . . . this is the one area of machine learning that is often not spoken about or taught in textbooks.”

What about this program will help students upskill or pursue a career change?

“The program is oriented toward developing the core machine learning skills for most data science jobs or machine learning engineering. If you are a working professional and you want to get into either one of the fields, this certificate is designed to be one of the best starting points, presuming you’re co-learning, or have already learned, Python.”

Take the first step toward building successful machine learning algorithms in Cornell’s Applied Machine Learning and AI certificate program. Learn more and enroll now.

This story was drafted by eCornell marketing intern Justin Heitzman.