It has been a mainstay of American education and employment policy for six decades. Then, in an instant, it disappeared.

The US Supreme Court’s decision in late June which stated that race can no longer be considered as a factor when choosing who to admit to university has massive ramifications outside of higher education. 

“Affirmative action”, as the policy was called, is the practice of favoring disadvantaged groups when filling places on university courses or in job roles. For years it has helped level the playing field for those who face systemic, society-wide racism and discrimination.

While this decision specifically applies to the use of this practice in education, employers up and down the United States, and around the world, will be looking closely at whether they need to adapt to the legal end of affirmative action.

An employer’s role

The court has, in effect, said that to consider an applicant’s race when they apply for anything – whether a degree, new job, or a promotion for an existing one – is now not possible. That’s a significant challenge for a software engineering sector already severely lacking in diversity.

More than half of all people working in software engineering are white men, according to 2022 data compiled by Cord. And women from ethnic minority backgrounds make up less than 5% of senior leadership roles.

The problem of representation hasn’t exactly gone unnoticed – nor have attempts to try and sweep the problem under the carpet. Recently, the popular programming question-and-answer site Stack Overflow was criticized for removing questions about race and gender from its 2023 developer survey. The company claimed they did so because of fears that asking demographic questions could intrude on people’s data protection rights. Others pointed out that it came a year after the answers to the questions showed more than 90% of users were white men.

Making a difference

The issue of underrepresentation for such a lucrative career path as software engineering hasn't made much progress, which is why the potential loss of a key lever for change has been felt so keenly. 

“Though affirmative action was just a Band-Aid on our country’s deeper systemic issues, it was still able to create a more equitable playing field for students of color,” says Talia Knowles, a human resource (HR) specialist for HumanResource.com. “Through affirmative action, many marginalized individuals were granted access to the top-tier education they needed to begin building their careers.”

Knowles points out that historically, the software industry and engineering, in particular, has been too reliant on where someone studied as a marker of their work ethic and quality. That now changes as many talented minority candidates could be further blocked from getting those places in the first instance. 

“In the wake of the end of affirmative action, it is vital that we take a hard look at those recruiting practices and change our practices to continue building an equitable workforce, with equal opportunities for all candidates, regardless of their ability to get into elite universities,” she says. “Though the method may be unclear, it’s vital that we do not give up this effort.”

While we wait for the implications of the Supreme Court decision to permeate the corporate sphere, Nancy Stewart, an HR leadership coach and founder of Talent Alchemists, says, "For the time being, it is, quite literally, business as usual." The clock is ticking, though.

Opening the floodgates

“The ruling opens the door for conservative organizations to target company DEI [diversity, equity, and inclusion] initiatives. Any recruitment, advancement, or retention program that has a diversity component will be placed under a legal microscope,” Stewart fears. “Of course, it is illegal to make employment decisions based on factors such as race and gender. However, organization initiatives that reference diversity, equity, and inclusion may come under fire as discriminatory.”

She suggests that companies should hold strong, and not buckle under pressure to limit or downplay their diversity, equity, and inclusion (DEI) measures and programs for fear of being caught out by overzealous legal action – even though she acknowledges that for some corporate executives, no risk may be better than low risk.

That chilling effect is on Jarir Mallah's mind as well, an HR specialist and hiring manager at Ling App, where he manages a growing team of over 50 employees. “The impact of this decision on DEI will depend on how it is interpreted and implemented,” Mallah explains. “It may affect organizations' ability to implement affirmative action programs aimed at increasing representation and addressing disparities.” Regardless of individual companies’ actions, he believes that the decision will have implications for efforts to diversify the engineering sector for years to come.

Holding strong and finding solutions

Sector hiring managers are responsible for mitigating the impact of the decision, says Mallah. “HR professionals, software engineering leaders, and DEI experts must collaborate and explore alternative strategies,” he says. “This could involve strengthening outreach to underrepresented groups, creating inclusive work environments, and offering training and mentorship programs.”

Far from being the death knell for DEI initiatives, Mallah says the decision doubles down on the need for an ongoing commitment to diversity, equity, and inclusion. “It reinforces the importance of building diverse and inclusive cultures within software engineering organizations to drive long-term success and create a more equitable industry,” he says. “Adapting strategies and maintaining a focus on diversity and inclusion will be key to navigating the evolving landscape.”