How to Recruit and Hire for Diversity . . . Legally
So you’re ready to grow your business with some new hires—and you know the strategic importance and competitive advantage of having a diverse workforce. So how do you go about recruiting, hiring and promoting diverse talent? And do it legally?
Joseph Johnson, SEED Law Associate Attorney, has some words of warning and wisdom. SEED Law is a boutique business law firm specializing in representing entrepreneurs and business owners. For more information or to schedule a consultation, please visit www.seed.legal or call (816) 945-4249.
Intentionally recruiting for diversity is legal and in many cases commendable, but the caution is to do it fairly and in a smart manner so as not to violate antidiscrimination laws.
Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment act of 1967 and the Americans with Disabilities Act are the leading laws safeguarding people of protected classes from discrimination in employment environments. Among other safeties, these laws prohibit discrimination in recruitment, hiring, firing and retaliation involving persons in the protected classes, which include race, color, religion, sex, national origin, age and disability.
What the Law Says About Hiring for Diversity
Through the courts and the Equal Employment Opportunity Commission, the government looks to enforce antidiscrimination in employment in many different ways. One of these ways is through policing diversity initiatives. The employment practices of companies that seek to diversify their workforce or managerial positions can sometimes run afoul of antidiscrimination laws, even though their goal may be legitimate.
The basis of lawsuits resulting from this treatment is often that a member of a non-protected class was unfairly treated or a protected class member was given preference in the hiring process in violation of the aims of the antidiscrimination laws. Suits that come from the EEOC or aggrieved individuals in cases like these are often referred to as “reverse discrimination” suits.
The EEOC recommends that all selection procedures and hiring should be done without regard to race, color, religion, sex, national origin, age or disability, but also recognizes that diversity is important in the working environment and works to promote diversity.
All other things being equal between two candidates, a choice can be made to recruit, hire or promote a member of a protected class over one who is not. The issue of reverse discrimination arises when there is a difference in the qualities or qualifications of the candidates and the protected member is favored solely (or primarily) based on that person’s status as a member of a protected class.
Say, for instance, that you legitimately and reasonably believe that there are not enough women involved in your profession in your area. You are allowed under Title VII to purposefully tailor your recruitment efforts and strategies to encourage more women to apply for positions with your company and throughout the profession, but a practice of only recruiting to or hiring women could cause problems with the Title VII and the EEOC.
Additionally, if women are unfairly preferenced over men in positions where gender differences are not vital aspects of the position, or where the sole motivation for choosing a woman is because she is a woman, rather than being equally qualified or having a legitimate business reason for doing so, you may be opening yourself to reverse discrimination liability.
How to Recruit and Hire for Diversity . . . Checklist
The key factors in initiating a diversity initiative for recruiting, hiring or promotion are (1) consistency, (2) consideration and (3) communication.
First, make sure that your standards, requirements and methods are consistent across the board and are applied consistently. Having clear and nonbiased standards as well as requirements that could unfairly prejudice a certain group being used only when absolutely necessary for the job and ensuring the methods you use are utilized uniformly can each be strong weapons if you have to fight a discrimination battle.
Second, being conscious that your decisions are not based on a certain protected trait, but are rather a consideration that is taken into account while considering candidates as a whole can be vital in determining the impact of a possible employment decision.
Finally, monitor your communications and processes so that it is clear to your company (or anyone else who may examine them later) the goals and intentions of your approaches to your employment needs.
For additional information, the EEOC has many resources to help employers recognize, avoid, address, and resolve issues in several different areas that is specifically tailored toward small businesses on their website: https://www.eeoc.gov/employers/smallbusiness/index.cfm.
SEED Law is a boutique business law firm specializing in representing entrepreneurs and business owners. For more information or to schedule a consultation, please visit www.seed.legal or call (816) 945-4249.
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1) See generally Employer Diversity Initiatives: Legal Considerations for Employers and Policymakers, New York City Bar Committee on Labor and Employment Law, Apr. 2012, available at https://www2.nycbar.org/pdf/report/uploads/20072272-EmploymentDiversityInitiatives.pdf.
3) See Ricci v. DeStefano, 557 U.S. 557 (2009).
5) See https://www.eeoc.gov/eeoc/newsroom/release/1-12-17.cfm. Note: Bias is allowed in favor of persons with disabilities under the ADA or persons over 40 under the ADEA. See http://www.diversityinc.com/legal-issues/reverse-discrimination-eeoc-allows-bias-in-favor-of-people-with-disabilities-older-workers/
6) See Lutheran Church-Missouri Synod v. F.C.C., 141 F.3d 344 (C.A.D.C., 1998).