Corporate Diversity Policies Face Threats After Supreme Court Ruling

Turmoil ahead for diversity in hiring

The Supreme Court’s decision on Thursday to strike down affirmative action at colleges and universities sent shock waves throughout higher education. But the effects of the 6-3 ruling, which found that race-conscious admissions programs were unlawful, promise to go much wider.

Many in corporate America fear that years of efforts to promote diversity are now vulnerable to legal challenges. While this particular case may not upend such initiatives, lawyers and executives say, future ones that go before the Supreme Court could.

What the Supreme Court found: Affirmative action programs can’t be reconciled with the Constitution’s equal protection clause, Chief Justice John Roberts wrote for the majority. The programs at Harvard and the University of North Carolina “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping and lack meaningful end points,” he added.

Schools could still factor in race in some ways, including through personal essays, though Mr. Roberts warned that each applicant must be assessed “based on his or her experiences as an individual — not on the basis of race.”

The effects on business could be profound. Corporate America has embraced diversity, equity and inclusion policies, particularly in the wake of protests over George Floyd’s killing in 2020. But Thursday’s ruling opens the door for employees — and conservative activists — to bring legal challenges to those policies.

Though the number of so-called reverse discrimination claims filed with federal regulators dropped between 2011 and 2021, it has begun to rise more recently, according to USA Today. Two weeks ago, a federal jury ordered Starbucks to pay $25.6 million to a former regional manager who said she was fired because she was white.

Over 60 big companies, including G.M. and Meta, have also warned the Supreme Court that ending affirmative action in higher education would make it harder to build diverse workforces. Data shows that the number of Black and Latino students at universities has fallen sharply in states that have already scrapped such programs.

The ruling also set back efforts to improve board diversity via quotas, a month after a federal court struck down a California law imposing such a mandate on companies based there. A federal appeals court is weighing a challenge to a Nasdaq rule along similar lines.

Corporate diversity efforts aren’t exactly analogous to university ones, some experts say. The equal protection clause doesn’t apply to private employers, Doug Brayley, a labor law specialist at Ropes & Gray, told DealBook. And others contend that companies are allowed to actively ensure the widest pool of job candidates to hire the best applicants.

Still, Mr. Brayley noted, challengers will feel emboldened to sue, knowing the Supreme Court is receptive to their claims.

Corporate executives had been weighing their next moves ahead of the ruling. Those may include new ways of approaching diversity in hiring, like using different language to attain the same goals.

And some employers plan to stay the course: “Salesforce’s commitment to equality doesn’t waver, and we will continue to work toward our representation goals, regardless of today’s ruling,” Lori Castillo Martinez, the company’s chief equality officer, tweeted.

But diversity advocates fear that some companies may simply abandon such efforts in the face of new legal challenges: “Do not let your corporate counsel just say, ‘Oh, that is a wrap,’” Alvin Tillery, a professor at Northwestern University and a corporate diversity consultant, told The Washington Post.

HERE’S WHAT’S HAPPENING

Eurozone inflation presents a mixed picture. Data published this morning showed price increases fell to 5.5 percent in May — but also reflected a month-on-month rise in “core” inflation. That will likely prompt the European Central Bank to raise interest rates further. Meanwhile, the Commerce Department will release a report on personal consumption expenditures, a closely watched measure of U.S. inflation, at 8:30 a.m. Eastern.

The F.T.C. reportedly plans to file a major antitrust case against Amazon. A forthcoming lawsuit will focus on the e-commerce giant’s core online marketplace, arguing that it unfairly favors online merchants that use the company’s logistics software, according to Bloomberg. It would be the biggest move yet against Amazon by Lina Khan, the agency’s leader, who as a law student outlined ways to challenge the company’s dominance.

The Koch political network raises more than $70 million to stop Donald Trump. Some of the money raised by Americans for Prosperity Action, a group backed by Charles Koch, will help support a challenger to the former president for the 2024 Republican presidential nomination. It’s unclear who that may be, given wavering support for Gov. Ron DeSantis of Florida.

Washington cautions American companies about a Chinese counterespionage law. The National Counterintelligence and Security Center is warning that a newly revised law, which takes effect on Saturday, could give Beijing more access to and control over companies’ data, according to The Wall Street Journal. The notice comes as China has raided offices of Western-linked consulting firms, citing security concerns.

Warren questions Goldman over its SVB roles

Months after Silicon Valley Bank collapsed, Goldman Sachs’s role in its final days — as both an adviser to the lender and a buyer of its debt, potentially setting Goldman up for a big profit — has drawn scrutiny, including from federal authorities. Now, Senator Elizabeth Warren, Democrat of Massachusetts and a specialist in financial regulation, is demanding answers from Goldman, DealBook is first to report.

“This dual role — in which Goldman profited as the economy suffered — is reminiscent of the company’s behavior during the 2008 financial crisis, when it profited both from selling mortgage-backed securities and from placing bets against them,” Warren wrote on Thursday in a letter to David Solomon, the Wall Street firm’s C.E.O.

The letter reflects growing scrutiny of Goldman’s role. The firm sought to help Silicon Valley Bank shore up its finances ahead of a potential credit rating downgrade by Moody’s in two ways: by buying $21.4 billion worth of SVB’s debt, and by advising it on a planned $2.25 billion stock sale. (The equity raise failed when the debt sale forced SVB to take a $1.8 billion write-down, spooking investors.)

On the debt side, Goldman bought SVB’s loan book at a steep discount, seeking to profit by reselling it later. Though that’s a fairly typical move, it has drawn significant scrutiny here, given the fallout from SVB’s collapse. Goldman had offered its client the opportunity to hire another adviser for the debt deal, though SVB declined, DealBook previously reported.

“Goldman Sachs appears to have profited at nearly every stage of Silicon Valley Bank’s collapse,” Warren wrote. She asked Goldman to disclose any underwriter fees it received for advising on the failed capital raise, what the firm paid for the SVB loans and what happened to the value of that debt in the weeks after the bank’s collapse.

Tony Fratto, a Goldman spokesman, told DealBook: “We’re reviewing the letter. But it’s well known that banks don’t collect fees when capital raises are canceled.” He added that the firm earned $50 million from the loan sale.

Doubts swirl over the markets despite a stellar first half

Stocks look set to rise on Friday, capping an impressive first six months of the year as returns far outpaced Wall Street’s predictions.

The Nasdaq composite is on pace for the best first-half performance in its 52-year history, fueled by investor euphoria for tech companies that are going all in on artificial intelligence. The boom in tech stocks — which some veteran investors warn could be a bubble in the making — also helped push the S&P 500 into a bull market this month.

Other winners include Japanese stocks and Bitcoin, which has soared over 80 percent this year despite a crackdown on crypto firms.

At the other end of the spectrum … Last year’s big winners — energy stocks, commodities and crude — are deeply in the red. One big reason: China’s economy has not rebounded after Covid restrictions were lifted, as was expected.

More warning signs abound. Central banks are not finished raising interest rates as they grapple with persistently high inflation, potentially further straining corporate profits. And concerns about economic growth haven’t gone away.

John Lynch, chief investment officer at Comerica Wealth Management, predicts more gloom ahead. “After a bout of further volatility this summer, we look for the S&P 500 Index to be fairly valued near current levels (4,150-4,200) by year end,” he wrote in his midyear outlook. That would imply a drop of about 5 percent from on Thursday’s market close.

How oligarchs buy influence

As Vladimir Putin tried to assert his control over Yevgeny Prigozhin’s Wagner mercenary group this week, DealBook was reminded of the Russian president’s previous efforts to rein in the country’s billionaires. They made fortunes after the collapse of the Soviet Union and were required to remain loyal to Putin; those who did not were exiled — or worse.

The oligarch strategy has also involved buying influence in the West. A documentary released this week by Britain’s Channel 4 lays out how Alexander Lebedev, a former KGB spy who became a rich banker, and his son, Evgeny, embedded themselves in the country’s establishment.

The accusations include:

• They bought two newspapers to cozy up to the elite and influence opinion. They used one, The Evening Standard, to bolster Boris Johnson when he was mayor of London.

• When Johnson became prime minister, he nominated Evgeny to the House of Lords despite warnings against it from Britain’s intelligence services.

• Johnson attended a party in 2018 at Lebedev’s estate in Italy, without any security detail or other U.K. government officials. At the time, Italy’s intelligence services were monitoring the property because they believed it was being used for espionage.

Johnson and Evgeny Lebedev deny the allegations, but experts say the relationship is not atypical and has wider implications. “Evgeny Lebedev is like a caricature of a broader trend, but an important one,” Oliver Bullough, author of “Moneyland: The Inside Story of the Crooks and Kleptocrats Who Rule the World,” told DealBook. “It isn’t just that Boris Johnson overruled the advice on Lebedev, he also sought to suppress a report on Russia from Parliament’s Intelligence and Security Committee.”

THE SPEED READ

Deals

• The Chinese fast-fashion giant Shein denied a report that it had filed for an initial public offering in the United States. (Axios)

• Inflection AI, a chatbot start-up created by co-founders of LinkedIn and Google’s DeepMind, raised $1.3 billion from investors including Bill Gates and Nvidia. (Bloomberg)

Policy

• Under pressure from the U.S., the Netherlands this morning announced new rules to further restrict exports of chip-making equipment to China. (Reuters)

• Issuance of renminbi-denominated debt has reached $10.4 billion so far this year, a record, helping to internationalize China’s currency. (Bloomberg)

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