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

IT 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 products 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.

Consider the picture you present to the world (and potential candidates): Does your marketing collateral show diversity? Internal messaging should also stress more than just strict demographical diversity – emphasize diversity of thought, inclusion and varying perspectives.

No diversity program will work unless it comes with a willingness to do things differently than in the past. That especially applies to recruiting. Organizations that seek college graduates need to broaden the colleges where they recruit: Include some historically Black colleges and universities (‘HBCUs’) as well as colleges that seek and support female students. Other options for finding qualified URM and female candidates include connecting with college placement officers, college administrators and college professors involved with student organizations such as the American Association of University Women, National Black Graduate Student Association and Campus Pride, among many others. The professor supporters of such organizations are likely to be mentoring minorities or females and they can be helpful in directing those persons to the right company.

It’s also vital to address unconscious discrimination. Too many managers still hire or promote based on ‘fit.’ If ‘fit’ means a candidate has the right skills, that’s fine. However, if ‘fit’ means ‘I just liked him better than her,’ there may be an unconscious bias at work. Training will help eliminate unconscious bias, but so will pushing for diversity and getting managers on board the diversity train (in a lawful manner).

There are a number of ways to shake up the recruiting process to ensure a more diverse talent pool. There are diversity-oriented job fairs throughout the United States (although some not very diverse states may have limited options). Some ‘head-hunter’ recruitment organizations will specialize in, or at least support, diversity hiring. Develop and use affinity groups to support finding diverse candidates and developing a diverse pool of high potential internal candidates for promotion. (Caution, however – affinity groups can sometimes go off course for a variety of reasons. Affinity groups work best (a) if they work closely with organizational leaders; (b) if they understand that the group needs to support the business; and (c) if the groups are led by capable facilitators.)

But while the above are all positive steps, they bring potential pitfalls that must be watched out for. For instance, it may be tempting to financially incentivize the hiring of diverse candidates. While bonuses paid to recruiters may be OK, bonuses paid to hiring managers for selecting URMs and women are legally dangerous. If the recruiting bonus relates to adding URMs and women to the recruiting pipeline, that should be acceptable. However, if the recruiter’s bonus involves the recruiter being a decision-maker as to who gets hired or who is recommended as a finalist to the hiring manager, that bonus could be legally problematic.

Similarly, setting unrealistic goals may mean taking decisions that cause legal problems (for instance, holding a position open for a diverse candidate) or simply make attaining those goals impossible given the demographics of the sector. For example, a company might say that “we’re going to have women fill 25% of our engineering jobs by next year.” That sounds fine, but in some geographical areas and in some types of engineering, the actual availability of qualified females is far less than 25%. Goals and targets should be based on the reality of the field and what is actually possible in that.

Another common mistake is to assume that once someone is through the door and in a senior position, the diversity goal has been achieved. But DEI stands for Diver-

DEI STRATEGY

Another common mistake is to assume that once someone is through the door and in a senior position, the diversity goal has been achieved. But DEI stands for Diversity, Equity and Inclusion – not just Diversity.”

sity, Equity and Inclusion – not just Diversity. Even if an organization achieves its targets in regard to hiring, the program isn’t over. Without being able to retain candidates, any achievements will be short-lived. Inclusion means an atmosphere that welcomes diversity, programs to develop employees of all backgrounds, managers who care about their employees and many other post-hiring considerations. The good news is that affinity groups tend to help with retention, but equality, fairness and a welcoming environment all count towards creating an inclusive environment.

Finally, a key recommendation for those tasked with creating diversity initiatives and programs is to seek legal advice before announcing them to the world. Getting it wrong – even for the right motives – can create expensive problems. Launching a program with sound legal advice behind it maximizes the chances of success and minimizes the legal risk involved. For more information on creative a lawful DEI initiative, see boxout to the right.

WHEN IT GOES WRONG

An in-house lawyer with Electrolux NA Inc. filed a lawsuit when he was denied promotion from interim general counsel to the permanent post, claiming it was because he was a man, and that the company was in the midst of a diversity-fueled push to elevate women into leadership roles. The suit claimed that the company was pursuing a quota, that senior management had expressed that they would be seeking a woman to fill the position, and that the diversity drive meant a woman was recommended for the job before the claimant was even interviewed. The claimant also said he learned of the scheme during a PowerPoint presentation and that, as a result of his protests about the ‘discriminatory’ nature of the scheme, he was harassed and side-lined.

COULD HAVE BEEN AVOIDED

While it’s impossible to comment unequivocally on a matter without knowing the full details of the case, it seems in this instance that the company could have prevented many of these issues arising by implementing the steps outlined in the article above (see also boxout). Avoiding quotas – especially ones which were considered ‘a stretch’ given the field; ensuring all diversity programs are clearly communicated; and recognizing the need to interview a mix of candidates without insisting that a role be filled by one particular demographic would have all gone a long way to negating legal peril.

DEI STRATEGY

CREATING A LAWFUL DEI Initiative

These recommendations are drawn from the existing legal authority and provide guideposts to the promotion of a diverse workplace while attempting to minimize the risk of legal exposure.

• Draft an aspirational mission statement, but one which can be tailored toward specific goals. Be clear about how progress will be measured. • Appoint a dedicated leader with responsibility for the targets, and get senior management buy-in. • Communicate the mission and the goals clearly to employees with an emphasis on diversity of thought, inclusion and varying perspectives rather than strict demographic diversity. • Do things differently. Review and expand historic recruiting practices and pipelines.

Take steps to address historic (and likely unconscious) bias. • Develop and use affinity groups both at the recruitment stage and to ensure the

‘inclusion’ part of DEI plans once candidates are in place. • Make sure any financial rewards (such as hiring bonuses) and systems to track and utilize numbers and demographics are not legally dangerous. • Set realistic targets that reflect the sector and avoid insisting roles must go to a URM or female candidate. • If you launch a DEI program, launch it loudly. Send your executives to diversity events. Let the world know that you mean what you say in terms of creating more diversity – but make sure your words are backed up with actions. • Remember it’s not just about hiring or promoting candidates. A DEI program needs to ensure diverse employees feel welcome, empowered and able to thrive in the organization. • Seek legal advice – lawsuits are expensive!