Since the U.S. Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, Diversity, Equity and Inclusion policies have faced increased scrutiny. Practices promoting DEI are continuing to be challenged by activists, workers, and politicians. Hardly a day goes by when DEI is not in the news in some fashion. In case you missed it, you can check out a few examples, here, here, and here.
Consider these ten ways to avoid having your DEI practices become the next target:
No. 1: Don’t tie executive compensation to attainment of diversity goals. Such a practice is not per se unlawful, but it could provide powerful evidence to support a claim that managers made employment decisions based on protected characteristics. The State of Missouri relies on this type of monetary incentive in its lawsuit against IBM alleging discrimination against men and non-minorities. Employers can reward managers who comply with company policies, including those requiring equal employment opportunity, but compensating them for hiring individuals of a certain race or sex is inherently risky.
No. 2: Set diversity goals in a realistic and objective way. If your organization desires to set goals for different demographic groups, ensure that the goals are based on demonstrably objective information, such as census data for specific occupations in specific geographic areas. Diversity goals that do not have an objective basis can set the organization up for failure when they cannot be attained. Even worse, they can make the company vulnerable to claims that the goals could be attained only through the use of unlawful criteria in decision-making.
For decades, federal contractors have been lawfully setting placement goals using data-driven, objective calculations showing that women or minorities are underrepresented. Non-contractors can use the same methods for determining whether areas of underrepresentation exist and setting realistic placement goals.
No. 3: Don’t set deadlines or unrealistic timeframes for achievement of diversity goals. If your organization decides to implement diversity goals, you should ensure that any timeframe for attaining those goals is reasonable in light of anticipated opportunities and attrition.
For example, if the goal is for the 30-person executive leadership team to be 50 percent female in two years but it is currently only 20 percent female, achievement of the goal would require the addition of nine more females during that two-year period. If there are fewer than nine openings during that time, then the employer would have to move men off the leadership team. An employer is unlikely to force men out of jobs just to attain a diversity metric, but if a male happens to be demoted or terminated, you can imagine what their legal challenge will be. Alternatively, if nine or more openings do exist and they are all filled by women, male applicants could plausibly argue that the selection process was biased in favor of women.
Instead of setting specific representation goals, we recommend that employers set placement rate goals in areas of calculated underrepresentation. Here, the percentage goal is based on the availability of females or minorities for the position (or group of jobs). Then over time, the employer monitors its placements into that role to determine whether females or minorities are being selected at the expected rate. Placement rates are intended to provide gradual and incremental improvement in diversity, and if implemented correctly, are easier to defend.
No. 4: Train executives and managers about how to discuss DEI. Recent lawsuits challenging DEI policies are replete with allegations that managers made explicit, discriminatory comments regarding the selection of employees, such as “we cannot hire any straight white males.” Often, managers misinterpret an employer’s intentions and then miscommunicate those to others in the organization. This can create and perpetuate the impression that decisions are based on impermissible reasons. Employers should educate decision-makers regarding non-discrimination policies and ensure that they do not misunderstand the nature of any DEI policies or practices. For example, managers must know that setting diversity goals is not an explicit or implicit message to base employment decisions on protected characteristics.
No. 5: Don’t restrict training or mentorship programs based on protected characteristics. Some organizations have assumed that employment benefits, like specialized training, for women or people of color are not only permissible, but essential elements of ensuring advancement for such groups. However, Title VII of the Civil Rights Act prohibits discrimination in apprenticeships and other training. Thus, we advise against premising eligibility for any type of training on a protected characteristic.
No. 6: Don’t set aside positions or create quotas based on protected characteristics. Say you have 10 openings and want to ensure that at least one of them is filled by a person of color. What could be wrong with that? Again, Title VII provides that employment decisions cannot be based on race or color. If an employer predetermines that a specific opening -- or number of openings -- will be filled by persons of a certain demographic, then it has engaged in unlawful discrimination. Rather than setting aside a position for a person of color, the employer should conduct robust recruitment to ensure that it has a diverse pool of candidates. When that occurs, a neutral and non-discriminatory selection process should result in a more a diverse workforce over time.
No. 7: Be mindful of statements in annual reports, websites, or other external communications. This recommendation builds off No. 3 above regarding diversity goals. Many of the activist groups challenging DEI programs are basing their complaints on information that an organization made publicly available. This has caused some employers to start disclosing less information about their DEI efforts. Regardless of your organization’s stance on transparency, it would be wise to closely scrutinize DEI information for accuracy and potential for misinterpretation before making the information public.
No. 8: Ensure that DEI training is presented in an even-handed manner. As my colleague Robin Shea recently reported, employers can mandate training on DEI (assuming applicable state or local law does not prohibit this type of training), but you should follow her insightful tips if you do so.
No. 9: Educate recruiters and hiring managers regarding your neutral non-discriminatory selection process. Employers should periodically remind all individuals involved in its applicant selection process that the non-discrimination policy applies to each step in the hiring process. Policies or practices that require a hiring manager to be presented with a diverse slate, or a certain number or percentage of females or people of color, can result in unlawful discrimination. Although diverse slate criteria can potentially be satisfied organically – without using applicants’ demographic information – more likely than not, individuals will be moved forward in the process because they satisfy the diversity requirements. Hiring managers should also understand that it is inappropriate to request recruiters to forward applicants of a certain race or sex for their review. Employers should always focus on hiring the most qualified candidates, regardless of race or sex, or any other protected characteristic.
No. 10: Engage counsel to provide guidance when tricky questions arise. You knew I would end with this, right?
