What’s an effective way to increase diversity in our company and match demographics in our area while still hiring the best candidates without running into legal issues?
Quick Answer
Supplement your general recruiting strategy with a strategy aimed at increasing diversity. Increase outreach efforts, and do not create unnecessary barriers to increasing diversity. Include a diversity statement in job descriptions and on your company website.
Legal Perspective
Duane Morris LLP
Philadelphia, Pennsylvania
If not done properly, diversity initiatives can backfire and result in discrimination claims, says employment law attorney Jonathan Segal (jsegal@duanemorris.com), partner at Duane Morris.
For example: If you want more women and minorities at your company, your instinct may be to focus recruiting efforts solely on those applicants. But, that can appear discriminatory toward qualified male and/or non-minority candidates.
The best practice is to supplement, not supplant, general recruiting strategies with a diversity-focused one. That way no one is effectively excluded based on who they are.
Related issues arise in the decision-making process. Generally speaking, it is unlawful to consider gender, race, ethnicity and other “EEO” factors, even if only one factor in decision-making. This is equally true of affirmative action employers.
However, employers can and should consider differences in experience, perspective, contacts and other “non-EEO” factors. By considering non-EEO factors, employers can and will lawfully increase EEO diversity.
Relevant Case Law
Turner v. Public Service Co. of Colorado
Weaver v. Ohio Farmers Insurance Co.
Groves v. South Bend Community School Corp.
HR Insight
Quantum⁵
Scottsdale, Arizona
One of the best practices I’ve encountered is to set quotas for the interview process that include interviewing women and minorities for every posted job opening, particularly in leadership roles, according to Nicole Cerfontain Rosas, a Vice President of People Operations in Arizona.
It leaves room to select the best candidate for your organization based on a variety of factors including prior experience, qualifications and cultural fit, while giving women and minorities greater exposure for consideration.
Gulf Coast Regional Blood Center
Houston, Texas
According to HR Manager Rodney Green, ways to increase the diversity pool of qualified applicants include:
- Increasing diversity in sourcing
- Auditing your job ads
- Targeting sources where diverse candidates congregate
- Encouraging your diverse employees to refer to their connections
- Offering internships to targeted groups
- Developing an employer brand that showcases your diversity initiatives, and
- Creating company policies that appeal to diverse candidates.
Sexual Violence Center
Champlin, Michigan
Review job descriptions (i.e., the requirement of having a car when there is public transportation, excessive education requirements, etc.) to uncover hidden biases, says Executive Director Kenosha Davenport. Then, ensure that you are advertising jobs with several vendors.
The Cost of Noncompliance
Jury sides with exec in reverse discrimination case: Nonprofit pays $3.9M
Who was involved: Novant Health, Inc., a medical nonprofit, and a white executive who claimed he was fired so the employer could diversify its leadership.
What happened: According to the employee’s lawsuit, he was unceremoniously fired and replaced with a white female and a Black female who shared his responsibilities. The employer said the man had been underperforming and had missed key opportunities. It insisted that its DEI policy was a “comprehensive initiative” that benefited the nonprofit. The employer said the man cherrypicked his examples of white men being discharged in an attempt to demonstrate a pattern of targeting white males for separation.
Result: A jury sided with the employee, awarding him $10 million in punitive damages. A federal court reduced the award to $300,000, noting the cap on punitive damages under Title VII. The court tacked on another $2.34 million in back pay and $1.08 million in front pay. In total, the nonprofit paid $3.9 million.
Info: Jury Sides With Former Executive in “Reverse Discrimination” Lawsuit, 12/10/21.
Sex discrimination settlement: Makeup company pays $354K to male employee, male applicants
Who was involved: Ventura Corporation, a Puerto Rico-based wholesaler of makeup, beauty products, jewelry and other personal care items, and a male employee along with an undetermined class of male applicants.
What happened: The male employee complained that the company discriminated against men based on their gender. Shortly afterward, he was promoted to “zone manager.” An EEOC lawsuit claimed the company promoted the employee to set him up for failure and then terminated him. In the EEOC’s view, this amounted to retaliation for his complaints about sex-based discrimination against men. The EEOC suit also claimed the company engaged in a pattern or practice of refusing to hire men for “zone manager” and “support manager” positions.
Result: The company paid a total of $354,250 to settle the lawsuit, including a payment of $150,000 to the male employee. The remaining settlement funds were paid into an account to be distributed to a class of qualified male job applicants who applied for management positions between 2004 and 2014 but were not considered for hire. Under the consent decree, the company also agreed to:
- Implement a detailed applicant tracking system
- Actively promote supervisory accountability for discrimination prevention
- Provide anti-discrimination training to all company employees
- Provide anti-discrimination training specific to managers and employees who play a role in the hiring process, and
- Provide bi-annual hiring reports to the EEOC for three years.
Info: Ventura Corporation to Pay $354,250 to Settle EEOC Lawsuit for Sex Discrimination Against Men, 4/3/14.
City pays $5M to settle white firefighters’ reverse discrimination lawsuit
Who was involved: The City of New Haven, Connecticut, and 20 white firefighters.
What happened: According to a lawsuit that reached the U.S. Supreme Court, the city gave exams to 118 candidates who applied for captain or lieutenant positions. None of the 27 Black candidates scored high enough to qualify for the positions. Twenty white candidates’ scores were high enough to qualify for the positions. Even so, the city decided not to use the test results, and no one was hired to fill the 15 positions that were immediately available. The 20 white firefighters sued, alleging reverse discrimination.
Result: After the Supreme Court sided with the firefighters and remanded the case to sort out damages, the city agreed to pay $5 million to end the dispute, which included $2 million in damages for the 20 firefighters and $3 million to pay their legal fees.
Info: City of New Haven Pays $5 Million To Settle Reverse Discrimination Suit, 7/28/11.
Key Takeaways
- Make sure your hiring team is aware of your goals relating to workforce diversity.
- Make an effort to offer job benefits that appeal to a broad set of potential job applicants.
- Develop a diversity statement, and include it in your job descriptions and on your website.
- Develop and conduct diversity training on a regular basis.
- Expand outreach efforts to entities that support underrepresented groups, such as community groups and nonprofits.
- Do not create unnecessary barriers to increasing diversity, such as a requirement for an advanced degree when such a degree is not actually needed to do the job.
- Do not express a preference for any particular minority group in job postings.
- Supplement general recruiting strategies with a diversity-focused strategy.
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