"Attracting Diverse Talent & Not Plaintiffs' Lawyers - Jonathan Segal, NAHCR Directions, Fall 2014

Fall 2014

Attracting Diverse Talent & Not Plaintiffs’ Lawyers Jonathan A. Segal

Mission Benefits of Diversity We all know that there are substantial mission benefits when it comes to diversity, such as: First, every employer wants to hire the best and the brightest. This mandates that employers reach out and develop a diverse applicant pool. No employer can afford to exclude any community from its search for talent.

Second, even though we all live in an increasingly diverse world, having a diverse workforce results in greater diversity in contacts, and therefore, greater potential for business.

Finally, with differences in backgrounds come differences in perspective which results in new ideas and greater innovations.

But the fact that diversity is invaluable does not mean that employers can consider “protected groups” in decision making. In fact, employers probably cannot.

The Law The Supreme Court has held that, in order for an employer to engage in voluntary affirmative action, two requirements must be met: (a) there must be remedial purpose (to be discussed); and (b) the affirmative action must be narrowly tailored (to be discussed).

What may be a legitimate remedial purpose? Two possibilities: 1. Admission to prior discrimination; 2. “Manifest imbalance” in traditionally segregated job categories.

It is important to note that voluntary affirmative action is even more restrictive when it comes to public employers.

A public employer cannot rely on manifest imbalance; only an admission of prior discrimination will justify voluntary affirmative action.

The Supreme Court has not specifically addressed whether an employer can consider diversity in the absence of a remedial purpose. However, the courts that have done so have universally said “no.”

For example, in Taxman v. Board of Education of Township of Piscataway, 91 F.3d 1547 (3d Cir. 1996), while the court found the employer’s purpose of having a “culturally-diverse workforce” laudable, it still found it unlawful. The Appellant Court held there is “no congressional recognition of diversity

as a Title VII objective requiring accommodation” in the absence of a remedial purpose.

In a case involving a public employer, the Fifth Circuit, in Messer v. Meno, 130 F.3d 130 (5th Cir. 1997) held “diversity programs, no matter how well-meaning, are not constitutionally permissible absent showing of prior discrimination” by a public employer.

What does this mean for employers in their effort to increase diversity?

1. An employer cannot set aside or reserve a position for a woman or minority; and 2. An employer most probably cannot consider race, gender and national origin as a “plus” in decision-making (unless for a remedial purpose).

What can an employer do? Plenty: 1. Increase the diversity applicant pool.

2. Minimize unconscious bias in the screening and selection process.

3. Value in decision-making the non-EEO aspects of diversity, to the extent job-related (for example, experience, perspective and contacts).

Defining Diversity The first step is to define diversity broadly. They should include EEO factors, such as age, gender and race, as well as non-EEO factors, such as diversity in experience, skills and perspective. There are two reasons why it is important to define diversity broadly.

First, a broad definition of diversity is consistent with the business imperative. We seek diversity in experience and perspective, for example.

Second, it is important for legal reasons. Having non-EEO aspects in a definition of diversity is important so we can make decisions based on them as opposed to the EEO factors.

Setting the Criteria The first step in any hiring decision is setting the criteria. Be careful of setting too high the number of years “traditional” experience. This may have an adverse impact on women and people of color, who previously have been deprived of the experience. continued on page 10

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Fall 2014

Attracting Diverse Talent

Interview Questions

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Make sure in the interview process that you do not ask any questions about EEO status, family status or personal status. This is important not only for legal reasons but also because of the business risk of pushing away talent by asking inappropriate questions. The business imperative aligns with legal imperative of asking only what is job-related and avoiding that which is not.

Be careful of caps, too. Caps have a potential adverse impact on older workers. Plus, remember, in terms of the meta message, we are talking about inclusion and not exclusion.

Posting Posting is important in the search for the best candidate.

It sends a message of inclusion. More specifically, it helps demonstrate that decisions are made based on qualifications, not connections.

One caution to the general rule, that is, don’t post if you effectively have made a decision. The posting makes the process appear fraudulent and actually increases your legal risk by inviting individuals to participate in the process who have no chance of ultimately getting the job.

External Recruiting Internal posting is great, but often insufficient. Therefore, external recruiting, in most cases, becomes necessary.

One option is word of mouth. There is nothing wrong with word-of-mouth recruiting. It can save money and the referrals tend to be strong because the employee knows that whom he or she refers is a reflection on him or her.

However, word-of-mouth recruiting is not without limitations.

Although obviously subject to exceptions, we tend to know people who are more like us (in terms of EEO demographics) so that word-of-mouth recruiting tends to perpetuate the current composition of the workforce.

Consider general recruiting beyond word of mouth, diversifying the sources that you use. This can be done at the same time as internal posting.

Also consider target recruiting. This should supplement, not supplant, general recruiting. To avoid any inference of discrimination, this should be done at the same time as general recruiting.

Screening Candidates The process by which applications and/or resumes are screened may impact the diversity of the applicant pool.

There are studies that show, as a result of unconscious bias, when decision makers see names and addresses, they are less likely to interview women and/or people who seem more likely to be other than white.

Consider covering the names and addresses on resumes before giving them to the decision makers. Our conscious gives us the opportunity to block unconscious bias which can result in excluding the most qualified candidate.

Employers can ask about prior experience, current skills and job requirements, by way of example. However, there are studies that show that certain individuals are more likely to be asked certain questions.

For example, younger women are more likely to be asked about flexibility, ability to travel, etc. Older individuals are more likely to be asked about technical skills, ability to change, etc.

Again, the problem is often unconscious. There is a conscious response to minimize the unconscious risk.

Consider starting each interview with a uniform list of questions. This not only avoids unconscious bias in the selection of questions asked, but also demonstrates to potential candidates your commitment to consistency so a candidate does not feel targeted when asked the appropriate tough questions.

Decision-Making In the decision-making process, do not make decisions based on EEO factors. As noted at the outset, considering gender, race and national origin, for example, is fraught with legal risk. However, you can value in decision-making the non-EEO aspects of diversity, such as experience, perspective and content, to the extent job-related.

That it is why it is important that the definition of diversity not be limited to EEO factors. It is important that you include non-EEO factors so that managers focus on them in their decision-making.

For example, you would never hire someone because they are Hispanic. But you could look for a nurse who is fluent in reading, writing and speaking Spanish because she or he will serve a large Hispanic population.

Diversity Danger Zones The two most common problems which, in my experience, result in the exclusion of diverse talent are: like me bias and bad cultural fit. So I will describe them both briefly.

The first is hiring someone because you think they will be a “good fit.” It is often what the EEOC calls “like me” bias.

Your comfort level with a candidate is important. But equally important is that we should not be hiring our mirror images.

NAHCR • P.O. Box 14365 • Lenexa, KS 66285-4365 • Phone: 913.895.4627 • Fax: 913.895.4652 • Email: nahcr@goAMP.com

Fall 2014 There are a number of steps an employer can take to minimize the risk of “like me” bias, such as: 1. Having a diverse team interview candidates. A diverse team cannot hire its mirror image.

2. Ask questions that get at differences, at perspective, contacts and experience. Valuing those differences which benefit the organization makes you less likely to have an unconscious “like me” bias.

The flip side of “like me” bias is denying a candidate a job because you think they would be a bad cultural fit. Cultural fit has been the subject of substantial litigation.

Cultural fit is neither legal nor illegal per se. However, the middle word, cultural, does suggest that the employer may be excluding those who are different from them, if you will, “not like me” bias.

An example would be a group of white women interviewing an Asian man and excluding him because “they feel in their gut,” he won’t fit in. If all you have to rely upon is a gut feeling, my gut feeling is you will lose if sued.

That does not mean that cultural fit can never be legit. It can be legitimate if you can demonstrate specific things that the applicant said, or do not say, did, or did not do.

Assume, for example, that an applicant complains that in his prior job he did not have adequate support. When you look at what he had versus what you would offer, you realize that he had more there than he would here. In these circumstances, you don’t have what he is looking.

The tendency may be to say bad fit. Instead, document the reason why, focusing on his needs, and on the fact that you don’t offer what would satisfy those perceived needs.

Finally, be careful of the term “diverse candidate.” The term is problematic for two reasons.

First, it may suggest that you hired a person for reasons according to their EEO diversity. This creates legal risk.

Equally important, focusing on the diversity of the candidate can undermine his or her skills and experience. There is a bring difference between a diverse candidate and a candidate of excellence who happens to be diverse. It is not just the words but the feeling which they provoke. 

NAHCR • P.O. Box 14365 • Lenexa, KS 66285-4365 • Phone: 913.895.4627 • Fax: 913.895.4652 • Email: nahcr@goAMP.com