Diversity in the workplace: Make sure your efforts are lawful

Title VII forbids basing employment decisions on an individual’s race, color, religion, sex or national origin. But the U.S. Supreme Court has twice upheld an employer’s right to voluntarily adopt race- and gender-conscious employment policies that the employer thinks will remedy inherent imbalances of diversity in the workplace.

While the Supreme Court has never overturned an employer’s voluntary affirmative action policy, lower courts have struck down such policies. This is typically when they have strayed beyond Title VII and trammeled upon the rights of male and nonminority employees.

Beyond voluntary efforts

Courts have struck down affirmative action plans aimed simply at promoting workplace diversity because Title VII doesn’t say diversity trumps discrimination based on a protected characteristic like race.

Selecting a candidate simply because he belongs to a race you would like better represented in your company may mean “reverse discrimination.” The biggest mistake employers make is to adopt casual and unwritten affirmative action practices without considering whether these practices are lawful. That may lead to reverse discrimination claims by disgruntled employees and applicants.

Employers that want to correct employment imbalances among women or minority employees should create specific written policies consistent with Supreme Court rulings. Such policies should be in writing to avoid any confusion as to why the policies were adopted, and to help HR departments implement the policies.

Diversity policy process

Here’s how to create a good policy:

Determine whether actual underrepresentation exists. The only legitimate reason for race- or gender-conscious employment decisions is to remedy “manifest imbalances in traditionally segregated job categories.”

Before adopting an affirmative action plan, see if there is an imbalance. Compare the number and percentage of qualified and available female or minority candidates with the percentage of women and minorities in each department. For unskilled jobs, compare the employee population with the percentage of women or minorities in the area labor market or the general population.

Where a job requires special training, however, the comparison should be with those in the labor force who possess the relevant qualifications.

Determine whether the positions at issue are in traditionally segregated job categories.

In addition to statistically establishing a disparity in the workforce composition, the plan should take into account the affirmative steps necessary to address impediments to employment and advancement.

If an employer determines affirmative action is desirable and necessary and that a manifest imbalance exists, the policy should state the conclusion that mere prohibition of discrimination is insufficient to remedy the effects of past practices. The policy must be remedial and temporary as opposed to a plan aimed at permanently maintaining a balanced workforce.

The employer doesn’t need to determine that it has discriminated in the past; only that the job category is one that traditionally has been closed to members of the groups now being given a preference.

Limit the affirmative actions that can be taken under the policy. Affirmative action plans may not unnecessarily trammel upon other employees’ rights. Courts routinely strike down affirmative action plans that replace currently employed workers with members of minority groups, bar advancement by non-minority groups or permanently adopt measures aimed at achieving quotas.

To avoid those pitfalls, the plan should merely authorize the employer to consider race or gender as one factor in making hiring or promotion decisions. The policy should explicitly state that the employer is not adopting quotas. The plan should merely authorize the employer to take into account affirmative action concerns when evaluating qualified applicants who are members of underrepresented groups.

Limit the life of the plan. The plan should be presented as a temporary measure aimed at eliminating manifest imbalances in the opportunities for certain groups. The plan should state that its purpose is merely to attain a workforce whose composition reflects the proportion of minorities and women in the labor force who possess the necessary qualifications.

Because the purpose must be to remedy past barriers, the plan’s only legitimate goal should be to attain a balanced workforce, not to maintain one.

In a nutshell

Don’t take this effort lightly. Establish a legitimate need for the policy. Then memorialize affirmative action measures in writing. Narrowly tailor the policy to comply with Supreme Court precedent.

The relatively uncertain state of the law in the lower courts means that no affirmative action plan is completely without risks. However, taking the measures outlined here should encourage a court reviewing the plan to see that its motivation is consistent with Title VII. These measures also will show that the reach of the plan is not so great as to unnecessarily infringe upon the rights of other applicants and employees.

On the other hand, an employer may determine that it has no basis for adopting an affirmative action policy. If that’s the case, employers should make sure hiring personnel understand the employers’ hiring goals and work toward them without favoring members of any particular group.