The U.S. Supreme Court's pivotal rulings in the University of Michigan affirmative action cases this summer provide some direction on how far employers can go to increase racial diversity within their work force. While both cases dealt with university admission, they also affect the use of affirmative action in employment settings as well.
At issue: the university's practice of considering race as one factor in determining admissions with the goal of achieving a diverse student body. The Supreme Court said that having a diverse student body serves a "compelling state interest," and the school's policy is constitutional as long as it is "narrowly tailored" to achieve this goal. (Grutter v. Bollinger, No. 02-241) In the companion case, the "point system" used in the university's undergraduate admissions process was found unconstitutional. (Gratz v. Bollinger, No. 02-516)
In light of these rulings, you should review existing diversity initiatives and other preferential selection systems. Focus on practices that set numerical or percentage goals, such as providing incentives to managers for achieving their diversity numbers. If these targets aren't required by federal contractor affirmative action guidelines or don't meet the rules of voluntary affirmative action plans described by the Equal Employment Opportunity Commission (EEOC) and you can't clearly point to a legal reason for your methods, you'd be wise to drop them.
Generally, it's illegal to hire employees or make other employment decisions due to a worker's race, sex or other classification, even when your goal is to create workplace diversity. According to EEOC guidelines, such company diversity hiring programs are legitimate only if they're connected to the company's efforts to correct past or present discrimination or to diversify a historically limited labor pool.
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