“The road to hell is paved with good intentions.” – Harry G. Bohn, 1855
With recent social and political events putting a spotlight on race, equality and economic opportunity in our country, many employers are taking a stance on racial injustice. Most large corporations are releasing statements condemning systemic racism, while others are pledging money to help fund various internal and external diversity initiatives that provide opportunities for racial minorities. During this time, there is one question posed by many employers: How can we address hiring practices to increase diversity in our workforce lawfully? While developing a more diverse set of employees is a laudable goal, even employers with the best intentions can find themselves afoul of the law or hit with unexpected discrimination claims.
For employers with at least 15 or more employees, Title VII of the Civil Rights Act of 1964 mandates employer practices. State and local laws, which vary from one jurisdiction to another, may impact employers with smaller workforces or amplify Title VII requirements for all employers. Focusing on Title VII, the statute forbids discrimination in all phases of employment including hiring, and it also protects employees who file discrimination claims from retaliation by employers.
Discrimination in the employment context can arise in two separate contexts: 1) intentionally motivated practices and policies and 2) practices and policies that have an unintentional but disproportionate impact on certain races or classes of people. These are known respectively as disparate treatment and disparate impact discrimination. While disparate impact may be hard to spot in some instances, for purposes of Title VII, it is as problematic as disparate treatment. For example, certain screening criteria used by employers in the hiring process may have a negative effect on diverse candidates, even if unintended.
While employers may think that Title VII only protects against discrimination aimed at historically marginalized job applicants and employees, this is not the case. It bars discrimination based upon race, color, national origin, sex (including LGBTQ+ status), and religion against everyone. For example, the prohibition against racial discrimination applies to someone who is a member of a minority racial group as well as someone who is a member of the “majority” racial group. Similarly, discrimination on the basis of gender protects men as well as women or non-binary persons. The plain language of the statute does not state that it only bars discrimination against marginalized groups. The law also protects historically favored or dominant groups against workplace discrimination. With increasing frequency, members of groups that were not historically excluded are now bringing discrimination claims when they perceive that they were disadvantaged in the hiring process.
The Equal Opportunity Employment Commission (EEOC), the Federal body in charge of educating employers about Title VII and litigating employee discrimination claims, advocates for the use of “Uniform and Consistently Applied Standards” in hiring and promotion. Employers cannot base employment decisions on stereotypes and assumptions about a particular group. For example, an employer would likely be engaging in unlawful discrimination if it favored a candidate during the hiring process based on the assumption that, because of their race or gender, the person overcame hardship. However, if an employer considered that an applicant displayed hard work and perseverance in overcoming obstacles, it might not be discriminatory. If the employer reasonably believes that these qualities – work ethic and perseverance – will provide a benefit to the employer and make the applicant a successful employee, this is likely permissible to take into account in the hiring process and not discriminatory.
The term affirmative action often comes to mind for employers interested in increasing workplace diversity. In the employment context, affirmative action is taking concrete steps to give hiring preference to a particular group “appropriate to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity.” Under current law, an employer may apply affirmative action to correct the effects of prior discriminatory practices or a historically limited labor pool. For example, courts have approved affirmative action programs where a police force or fire department has denied fair access to diverse applicants or has used hiring criteria that resulted in a work force that does not reflect the diversity of the community it serves. Therefore, if employers seek to use affirmative action, they should have analytical and factual support demonstrating the need to implement these measures to withstand legal challenges.
When affirmative action initiatives or group preferences are not permissible by law, an effective approach to improving workplace diversity is to expand recruitment activities and evaluate current recruiting and screening practices to ensure a wider and more diverse group of applicants. One strategy for employers with a homogeneous work force is to limit the use of word of mouth referrals, as this process often fails to funnel diverse applicants into job opportunities. Employers can encourage minority employees to participate in referral practices and rotate the hiring team to get fresh perspectives. Employers can also seek applicants outside their usual recruiting venues, such as expanding your search to historically Black higher education institutions or women’s colleges. Such practices may increase the number of diverse applicants that apply and thus improve the likelihood of bringing in strong candidates from a broader range of backgrounds.
While improving hiring and recruiting is the first step towards workplace diversity, achieving equity, eliminating bias and promoting true belonging are critical to retain talented employees from all walks of life and to maintain an inclusive workplace in which everyone can thrive and advance.
John Reid, a law clerk and a current law school student at Villanova University Charles Widger School of Law, contributed to this article. He is working under the supervision of several senior lawyers at the Firm.