President Ronald Reagan had been slowly chipping away at affirmative action since taking office in 1981, but it was six months into his second term that his administration saw its chance to deal it a decisive blow.
Reagan’s replacement order would have removed those requirements, a policy consistent with his push for deregulation and vision for a racially colorblind America. If all went according to plan, the new executive order would be viewed as the administration’s “landmark legacy,” writes legal historian Melvin I. Urofsky in his 2020 book “The Affirmative Action Puzzle.”
But after the plan leaked to the media, the effort unraveled.
Backlash came from civil rights groups, Democrats and Republicans — but also from corporate America. Many companies had adopted affirmative action plans and come to believe in them.
“We will continue goals and timetables no matter what the government does,” said John L. Huck, chairman of Merck, the pharmaceutical giant. “They are a part of our culture and corporate procedures.”
Similarly, the National Association of Manufacturers told Reagan not to issue the order, arguing that “diversity in workforce participation produced new ideas in management, product development, and marketing,” according to Urofsky.
One 1985 survey of 128 Fortune 500 companies showed that 95 percent intended to keep their programs regardless of changes to the executive order. A year later, another survey showed that 9 in 10 planned to keep the programs; some would even expand them. According to one 1989 Harvard Law Review article, companies filed amicus briefs and sent telegrams to the White House opposing efforts to water down affirmative action.
All of this defied the White House’s expectations.
Reagan also received pushback from members of his Cabinet, as well as 126 Democrats and Republicans in Congress, who wrote a letter to Reagan calling affirmative action hiring goals and timetables an “essential tool in combating discrimination and … a necessary and proper response to the tragic legacy of historical discrimination which continues to plague our country today.”
Reagan never signed a replacement order, and Johnson’s affirmative action order has remained in effect ever since.
Nearly four decades later, corporate “diversity, equity and inclusion,” or DEI, efforts — an evolution of affirmative action — are again under intense pressure. This time, it’s not from the federal government, but rather from conservative activists emboldened by the Supreme Court’s June ruling striking down affirmative action in college admissions.
The ruling has fueled a tidal wave of reverse-discrimination complaints against Fortune 500 companies, including Meta, IBM and Amazon. In January, conservative activists hailed the resignation of Claudine Gay, Harvard’s first Black president, as a pivotal victory in their war against DEI, leaving some DEI professionals worried about the future.
But a recent survey and interviews with corporate lawyers suggest that companies are reacting in much the same way they did in the 1980s.
In a survey of more than 320 corporate executives by the employment law firm Littler Mendelson, 91 percent said the Supreme Court’s decision on admissions has not affected their prioritization of DEI. Moreover, 57 percent said they have expanded their DEI efforts over the past year, even as 59 percent said they have felt the rising backlash since the court’s decision.
“We’re seeing many employers maintain — or even double down on — their commitment to [DEI], even as backlash spikes,” said Jeanine Conley Daves, an attorney with Littler and member of the firm’s inclusion, equity and diversity consulting practice.
IBM, which has participated in affirmative action since the policy’s introduction in the early 1960s, is among those saying that its diversity efforts will continue, despite having been targeted directly.
In December, the technology company came under fire from conservatives when a recording was released of IBM chief executive Arvind Krishna stating that the company tied executive bonuses to diversity efforts. Soon after, America First Legal, a legal nonprofit run by former Donald Trump adviser Stephen Miller, filed an Equal Employment Opportunity Commission complaint against IBM, alleging that some of the company’s DEI policies violated Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination.
When asked about the incident in a Jan. 11 CNBC interview, Krishna stated the company’s commitment to DEI policies. “It’s very simple,” he said. “Always when there is stress … you should go back to one’s principles. IBM’s principle has been that we want to be an inclusive workplace where all employees can bring their whole self to bear.”
He noted that IBM promoted a woman to an executive role in the 1940s, long before the civil rights movement of the 1960s. “We intend to keep living by those principles,” he said.
To be sure, some companies are drawing back. Several prestigious law firms altered their diversity fellowships after being sued late last year, and other companies have made changes to their programs after being hit with complaints, according to reporting by Reuters.
In the Littler survey, 9 percent of respondents said the Supreme Court’s June decision prompted changes to how they approached DEI as well as a reduction in how much they prioritized it. And while 69 percent of respondents said their approach has not changed “in any way,” Conley Daves of Littler said in an interview that those companies may still be reviewing their policies to avoid litigation.
The birth of workplace ‘diversity’
In addition to threatening to replace the Johnson affirmative action order, Reagan’s Justice Department ordered dozens of municipalities to pare down their affirmative action plans. It also slashed staff at the Office of Federal Contract Compliance Programs, which monitored companies’ compliance with the Johnson order. And thousands of discrimination complaints were backlogged at the EEOC, which was then chaired by Clarence Thomas, now a Supreme Court justice. In June, Thomas, a vocal affirmative action critic, sided with the majority to overturn race-conscious admissions.
In a 1986 radio address, Reagan rejected arguments that his administration had attempted to end affirmative action. Yet in the same address, he denounced the use of hiring quotas and minority hiring goals, and used a famous Martin Luther King Jr. speech to illustrate his point.
“We are committed to a society in which all men and women have equal opportunities to succeed, and so we oppose the use of quotas,'' Reagan said, according to a New York Times article published at the time. ''We want a color-blind society. A society, that in the words of Dr. King, judges people not by the color of their skin, but by the content of their character.”
Harvard sociologist Frank Dobbin writes in his 2009 book “Inventing Equal Opportunity” that it was during the Reagan era that corporate equal-opportunity initiatives evolved to more closely resemble what’s known today as DEI. As the concept of “diversity” began to work its way into the corporate lexicon, companies started to argue that promoting a diverse workforce not only reduced legal exposure but was also good for business.
In an email to The Washington Post, Dobbin sought to distinguish between the Reagan era and the present, which he called “a very different situation.” The political resistance to affirmative action by conservative activists, he said, is far greater than it was in the 1980s, when much of the opposition was coming just from the White House.
“The big question in my mind is how business leaders will respond,” Dobbin said, noting that companies adopted calls for racial justice following the 2020 murder of George Floyd by announcing workplace diversity goals and publishing data on their progress.
“As some states outlaw spending on public DEI programs, I think we should be looking at whether companies stop publishing their data,” he said. “My guess is at the very least, many companies will stop making public pronouncements about their DEI activities.”