Recruiting and maintaining a diverse workforce are priorities for many employers. Employers must remember, however, that discrimination is illegal even when undertaken for a benign purpose, such as improving workforce diversity. In this column, we discuss best practices for creating a diverse workplace without ending up on the wrong side of the law.

What is Diversity?

“Diversity” is a term generally used to describe inclusion of a variety of demographic variables. These include the protected classes most employers are familiar with through Title VII or the Fair Employment and Housing Act— such as race, sex, national origin, disability and the like. But diversity also may include socioeconomic status, educational background, culture, appearance, and other variables representing immutable characteristics or lifestyle choices.

Employers seek to enhance diversity for different reasons, including to enhance capacity for creative problem solving, to better reflect and understand a diverse market or client base, and because it’s the right thing to do. Diversity in the workplace means hiring and retaining employees with varied backgrounds, experience, and ideas. To do so, the employer must be open to alter recruiting methods and train hiring managers to source and recruit a diverse workforce. Then employers must create a work environment that is inclusive, without engaging in “discrimination” – that is, making decisions because of employees’ membership in protected classifications.

Pursuing Diversity the Wrong Way is Illegal

Federal and state equal opportunity laws prohibit discrimination in all aspects of employment. There is no exception for “favorable” discrimination, i.e., targeting certain protected classes for purposes of diversity. In other words, discrimination need not be malicious or exclusive to be unlawful.

When faced with a homogeneous workforce or applicant pool, the temptation to target recruitment efforts at specific characteristics may be great. Employers may not lawfully pursue “diversity” in the form of a mix of demographics by targeting applicants with specific characteristics. Pursuing employees matching a specific profile of protected characteristics to the exclusion of others may worsen imbalances and set an employer up for discrimination claims.

A blatant example of “preferential” discrimination would be a job posting that specifically invites members of a certain race to apply. It is easy to recognize that this practice would be illegal. It would be just as illegal, however, for employers to interview only applicants belonging to desired groups, or to “score” applicants belonging to those groups more favorably.

Unlawful preferential treatment also includes policies and practices that appear neutral, but nevertheless disproportionately impact different protected classes. An example might be to require applicants to be fluent in Chinese, with a goal of attracting more Chinese applicants. Of course, if Chinese fluency is required for the successful performance of a job, it is legitimate to impose that job requirement. The key issue will be whether Chinese fluency is job-related and consistent with the business’s needs. And then, the employer cannot exclude non-Chinese applicants who can satisfy the bona fide language requirement.

In limited circumstances, the legitimate requirements of a job (called a “bona fide occupational qualification”) can target or exclude certain groups of applicants. For example, a job may involve a weight lifting requirement that excludes females in greater proportion to males. If the weight lifting requirement is bona fide and needed for performance of the job successfully, the “adverse impact” on females is legal.

Legal Ways to Promote Diversity

There are numerous ways to promote diversity without risking claims of “preferential” or even adverse impact discrimination. If recruitment tactics consistently result in a homogenous applicant pool, or if high turnover hampers diversity, management should focus on the policies, procedures, and other factors that impede workplace diversity. Lawful diversity plans should not seek to fill quotas or check off boxes, but instead try to remove barriers to entry, expand the applicant pool, and revamp employment policies to encourage retention.

Outreach. Management can improve the likelihood of attracting a more diverse applicant pool n several ways. Employers should consider the sources on which they rely to attract applicants. Job boards and websites may attract different demographics. Selecting which sites to use therefore can affect the demographics of the applicant pool. Employers who recruit at colleges may wish to consider changing or expanding the program to include schools with a more diverse student body. Employers can expand outreach via advertising to community groups, universities, websites, news sources, and nonprofits that serve and support underrepresented groups.

Hiring Policies. Unnecessary background checks or hiring criteria may be excluding applicants from different socioeconomic and educational backgrounds. Barriers to hiring should be carefully tailored to meet the needs of the position. For instance, if a college or advanced degree is not truly necessary to perform the position, or if experience may substitute for an academic degree, relaxing that criterion could result in a more diverse applicant pool. Criminal background checks and credit checks have attracted government scrutiny because of their effectiveness in screening out candidates. It may be that an employee with a criminal conviction or a past credit problem may be capable of performing job duties, depending on the responsibilities.

Managers and Human Resources. Employers seeking to add to diversity should review hiring criteria. Recruiters may be favoring certain universities or past employers, which could perpetuate the current workforce. Employers should ensure recruiters understand diversity goals and how to lawfully achieve them.

General Employment Policies and Benefits. Finally, employers seeking a diverse workforce should check whether established policies are impairing employee retention. For example, restrictive dress codes and grooming standards are an example of employment policies that can burden employees with disabilities, people of color, and others. Employers also should examine their support of charities and associations to ensure they will appeal to a diverse workforce.

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