Workplace Culture

Keeping Your Diversity Program Legal

By Jaffe Milstein

Apr. 26, 2010

Congratulations! Your diversity program is up and running, and it’s the crown jewel of the company’s Web site. The leadership is pleased, and you are having measurable success in recruiting a diverse workforce, attracting diversity suppliers and connecting with key community leaders and outreach programs. Maybe you’ve even won an award or two.

Everything is great, right? That is, until someone gets unhappy and challenges your program as being slanted toward minorities or “making the numbers” to the disadvantage of non-diverse applicants, employees or vendors. One headline lawsuit with bad facts can undo all of your success and stop your program dead in its tracks. How do you avoid this nightmare?

One way is to make sure that the program you create is the same one you implement. Typically, it’s fine for an organization’s program to tout goals of diversity and inclusion. But putting the plan into play is where you can draw criticism and legal challenges. The key to legally defensible diversity initiatives is to concentrate your diversity efforts on expanding the pipeline of candidates to include as many diverse candidates as possible.

Even after last year’s landmark case Ricci v. DeStefano, in which the U.S. Supreme Court held that employers’ “race-based action[s]” are not permissible under Title VII unless there is a “strong basis in evidence” that they would have been liable for disparate impact had they not taken the action, the Supreme Court has endorsed efforts to expand the pipeline of candidates. So have high-ranking representatives at the Equal Employment Opportunity Commission and the Office of Federal Contract Compliance Programs.

However, a distinction must be made between aggressive efforts to ensure a diverse candidate pool and the selection decisions made from that pool. Under Ricci, other Supreme Court precedents and lower court cases, broadening the pool to include diverse groups is permitted. Using “protected group status” as a criterion in the selection process is not.

There is some question after Ricci as to whether the traditional distinction applied to “remedial” affirmative action plans under Title VII will remain viable. Under those cases, “protected status” may be taken into account to remedy past statistical imbalances (or past discrimination) as long as the plan:

1. Is temporary;

2. Is designed to attain (not “maintain”) a nondiscriminatory balance; and

3. Does not “unnecessarily trammel” upon the rights of non-diverse individuals.

Particularly in light of expanded statute-of-limitations decisions and statutory initiatives such as the Lilly Ledbetter Fair Pay Act of 2009, many employers understandably do not wish to base their diversity plan on past imbalances, which might be construed as an admission of discrimination. Thus, under a non-remedial initiative, diversity efforts must be directed at expanding the pool of applicants to select the best-qualified candidate on a nondiscriminatory basis.

Diversity and inclusion efforts should focus first and foremost on expanding the pool of candidates for selection, and ensuring that actual decisions do not take race, color, religion, sex or national origin into account. Instead, the actual employment decision should be based on who is best qualified for the selection in question.

Permitted diversity and inclusion efforts to “broaden the pipeline” can include the following:

• Broad media advertising (not just in minority newspapers and journals) is the most widely recognized way to get the word out. However, creativity is a plus: A large state university recently extended its outreach to diverse students by passing out information at church and community events and programs.

• Trade organizations for women and minorities also maintain online job boards and placement listings that can provide no-cost or low-cost advertising for both your company’s diversity program and your available opportunities.

• If using an executive search firm, quiz its representatives not only regarding their familiarity with diversity initiatives but also on their existing pool of diverse candidates and their success in placing diverse candidates in your industry. Ask them what specific steps they would take to cast as wide a net as possible for each of the available positions.

As with any employment or promotion decision, employers should make efforts to negate individual subjective decision-making, which can allow prohibited bias to influence employment or promotion decisions. In particular:

• Discourage those involved in the selection process from being influenced by any inclination to “make the numbers” in a diversity plan or initiative.

• Develop objective criteria for selection and a methodology for observing and evaluating the interviewee’s behaviors and conduct demonstrating such criteria.

• Create an interview plan. Develop interview questions that are job-related and develop an “ideal candidate” profile. Interviewers should focus on applicants’ skills and qualifications. Employers may also create a numeric score based on applicants’ answers so they have concrete data to point to in making their decisions.

• Train and provide written guidance to those involved in the selection process to focus upon the objective criteria and objective manifestations of conduct and behaviors exemplifying such criteria. The goal here is to ensure that the selection process focuses on objective criteria and observable conduct in making decisions.

• Counsel those involved in the selection decision against having their assessments as to individual criteria influenced by the “halo” effect (i.e., allowing one characteristic, whether good or bad, to dominate their assessment of a candidate). Additionally, for currently employed candidates, advise those involved to be wary of prior written performance reviews that might compromise the objectivity of the decision-making process (For example: “Mr. X had terrible reviews, but he is the best for the job” or “Ms. Y had great reviews, but everyone knows the evaluations were inflated, and she is not that great.”)

Furthermore, the selection process should be structured to avoid the appearance that just one person—who may have manifest or hidden biases—is the decision-maker. Ideally, the employer should form a committee composed of diverse personnel capable of discerning and avoiding stereotyping and who also understand the specific skills and traits needed to perform successfully in the position. This committee should review selection recommendations, thereby providing practical validation for the selection criteria made. Alternatively, a committee such as the one described above may rank the final candidates or it may make the selection decision itself. If the result of that process is the selection of a diverse candidate, there should be no basis to question the decision.

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The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

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