Reverse Discrimination Diversity recruitment and hiring programs can be useful tools in creating a diversified workforce – but they don’t come without risk. Major corporate employers such as Google, Microsoft, YouTube, Starbucks and Wells Fargo have faced legal challenges and lawsuits claiming reverse discrimination after adopting diversity policies and other initiatives to hire and promote more people of color into their higher ranks. So how can employers implement the programs they need to bring about the change they want, while also protecting themselves from adverse legal consequences?. By Theodora Lee
I
T IS CRUCIAL TO UNDERSTAND THE LEGAL RISKS IN ANY TARGETED recruitment and hiring program in order to ensure that such efforts do not run afoul of equal employment opportunity and discrimination laws. Specifically, federal and state laws prohibit decision-making in employment based on a variety of protected classes and characteristics. These laws prohibit the consideration of an employee’s race, color, age, gender, national origin, religion, disability, genetic information, U.S. citizenship and other characteristics (such as being pregnant or transitioning genders). An employer that makes decisions based on any of these characteristics – even if those decisions are intended to (or do in fact) benefit one particular underrepresented group – violates the law. This means that even the most well-intentioned efforts to improve corporate diversity may result in potentially damaging and expensive reverse discrimination claims. Given the above concern, diversity efforts need to be made in a manner that doesn’t cross over a line of potential legal danger. For example, it is lawful to seek out Under-represented Minorities (URMs) in recruiting, but determining that a particular position must be filled by a URM is unlawful absent an extraordinary bona fide occupational qualification (such as a model for styling prod-
158 BIHC ANNUAL REPORT
ucts designed for ‘African American hair’). A decision to hold open a position until a fully qualified URM or female is found and hired – no matter how positive the motives for that decision – may also be unlawful as a matter of discrimination. The best way to ensure that DEI initiatives stay on the right side of antidiscrimination laws is to anticipate potential problems and design programs and policies to minimize potential risk, while also creating and implementing them in such a way as to ensure they are fit for purpose and will achieve the intended goals. It’s advisable to draft a mission statement that is aspirational in nature (e.g., to obtain a ‘critical mass’ of diverse perspectives), and then narrowly tailor the initiative to work toward the stated goals. It’s also crucial to identify the means by which progress toward those goals is measured. Any program needs to be communicated clearly to both employees and the wider world, but it needs to be backed up by both solid action and broader messaging – just saying you have a diversity program isn’t enough. An organization needs a credible diversity leader and should show active participation in diversity organizations and diversity programs. Further, upper management needs to visibly show support for diversity (albeit without creating unlawful quotas). Board of Directors support and diversification can also help.
