Every responsible business should be doing even more to increase diversity, equity and inclusion. The business case is compelling because of, among other reasons, the increased diversity of the pool of qualified talent. But just because there is a compelling case to increase diversity does not mean the goal justifies all means. In fact, the anti-discrimination laws must be considered in an organization’s efforts to increase diversity.
We begin with the following legal starting point: except under very narrow circumstances beyond the scope of this short blog, an employer cannot consider Title VII protected groups (for example, race, ethnicity or gender) to increase diversity. “Positive” discrimination, as it is referred to across the pond, is still unlawful discrimination, no matter how laudable the objective may be.
What this generally means is that an employer cannot:
1. Impose quotas or goals that may have the practical effect of being a quota.
2. Reserve a position for a candidate based on their race, ethnicity, gender, etc.
3. Consider race, ethnicity, gender, etc. in decision making, even if the finalists are seen as equal and the consideration of a Title VII factor is used solely to break the theoretical tie.
So, what should employers do to increase diversity lawfully?
First, employers should never establish quotas and should focus only on goals. But not all goals are created equal in terms of the risks they pose.
Quantitative goals (outside of mandated affirmative action) create more risk than qualitative goals: Risk if you meet them and risk if you don’t. But even qualitative goals are not without some risk.
The risk of qualitative goals can be mitigated if the goals are subject to the employer’s non-discrimination policy on paper and in practice. It is harder for a plaintiff’s lawyer to argue that a goal is discriminatory when it is defined by your non-discrimination policy.
The risk can be further mitigated if leaders are evaluated on their efforts and not on their results. If the focus is solely results, one can expect a challenge that the sole focus creates an incentive to consider unlawfully a Title VII factor as discussed below.
Let’s assume your senior leadership is all white men and one of the white men leaves. Can you reserve the open position for a woman or person of color?
The answer is “no,” even though the circumstances are compelling. However, the employer can and should increase the diversity of the applicant pool, which makes it more likely that the successful candidate will be a woman or person of color.
I could write a separate article on diversifying the applicant pool. But one step is to supplement, not supplant, general recruiting with targeted recruiting.
Another step is to apply a version of football’s “Rooney rule” in deciding which applicants will be interviewed. There are potential legal risks in applying the Rooney rule in the employment context, but the risks can be mitigated materially if the result is to increase the number of applicants interviewed (as opposed to replacing a candidate whom you otherwise would interview with a diverse candidate) and then making sure the same standards are applied to all applicants interviewed.
Considering Title VII Factor in Decision Making
Let’s assume you have increased the diversity of your applicant pool and that is reflected in the pool of applicants interviewed. Again, the employer almost always cannot consider gender, race or ethnicity, even to break a theoretical tie.
What an employer can do is consider differences in skills, experiences, perspectives and styles so that you have a “cultural add” rather than a “cultural fit.” Let me give you but one example.
An organization wants to hire a salesperson to penetrate the Latino customer market. The employer could not give a “plus” to someone because they are Latino. The employer could require that the employee have some level of fluency in reading, writing and speaking Spanish and/or contacts in the Latino community.
Not all Latinos will meet the requirement and some non-Latinos will. The requirement likely will increase the diversity of the applicant pool in a way that aligns with business objectives without focusing on Title VII factors.
And that leads to the last point of the article, which employers will need to consider up front. More specifically, employers should define diversity broadly to include: (a) EEO factors, such as race, gender and ethnicity; and (b) other differences that are not protected factors, such as differences in skills, perspective, experience and style. We increase EEO diversity by focusing on the non-EEO aspects of diversity.
Jonathan Segal is partner with Duane Morris.