While nearly everyone agrees that prohibiting discrimination and promoting equal opportunity are worthy goals, there is substantial disagreement about how to best achieve such aspirations. Indeed, even seasoned judges do not agree about how to lawfully achieve these goals consistent with the anti-discrimination prohibitions under Title VII and similar laws.
There is inherent tension between Title VII‘s prohibition of discrimination on the basis of protected characteristics and the equally compelling social goal of creating and ensuring a more diverse and inclusive workforce. When is an employer justified in making a decision based on race (or other protected category) in the name of avoiding an unintended adverse impact on another race (or protected category)? When may an employer adopt policies designed to increase and foster diversity at all levels of its workforce when there has not been proof of a history of discrimination by that employer? Most people abhor discrimination, but the issue of ensuring diversity and equal opportunities can be controversial.
EEOC‘s Affirmative Action Guidelines
Although Title VII prohibits discrimination, there is strong support for efforts to enhance the utilization of, and opportunities for, people of color and women in the workplace. Indeed, the regulations adopted with respect to Title VII state:
[T]he principle of non-discrimination in employment because of race, color, religion, sex, or national origin, and the principle that each person subject to title VII should take voluntary action to correct the effects of past discrimination and to prevent present and future discrimination without awaiting litigation, are mutually consistent and interdependent methods of addressing social and economic conditions which precipitated the enactment of title VII. Voluntary affirmative action to improve opportunities for minorities and women must be encouraged and protected in order to carry out the Congressional intent embodied in title VII. 29 C.F.R. § 1608.1(c).
In addition, the U.S. Equal Employment Opportunity Commission (“EEOC”) “encourages voluntary affirmative action and diversity efforts to improve opportunities for racial minorities in order to carry out the Congressional intent embodied in Title VII” and believes that employers “must be allowed flexibility in modifying employment systems and practices to comport with the purposes” of the statute. EEOC Compliance Manual, No. 915.003 § 15-33, Apr. 19, 2006.
The EEOC‘s regulations attempt to reconcile the law‘s goal of creating a more diverse and inclusive workforce with its equally compelling prohibition against discrimination on the basis of protected characteristics, such as race and sex. 29 C.F.R. § 1608 (Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964, as Amended) (―Affirmative Action Guidelines‖); 29 C.F.R. § 1607.17 (Policy Statement on Affirmative Action).
In particular, the EEOC‘s Affirmative Action Guidelines encourage employers to adopt voluntary affirmative action plans and programs, which may provide for gender- or race-conscious actions, but only if the employer has conducted a reasonable self-analysis, has a reasonable basis for concluding the action is appropriate, and the action is reasonable. 29 C.F.R. §§ 1607.13, 1608.3, 1608.4.
Thus, as long as adopted in accordance with the EEOC‘s Affirmative Action Guidelines, the EEOC recognizes that a private employer may voluntarily adopt policies appropriate to overcome the effects of past or present practices, policies or artificial barriers to equal employment opportunity.
The Thorny Issue of Diversity Initiatives – Reverse Discrimination
Companies that embrace diversity and seek to have their workplace populations better reflect the demographics of the qualified workforce populations in which they operate, ironically, find themselves facing the threat of litigation or other legal impediments to promoting and maintaining diversity. For example, seemingly objective criteria adopted to ensure nondiscrimination and merit-based decisions may, unintentionally, have a disparate impact on a particular group. Likewise, well-intentioned efforts to promote diversity may run afoul of laws they were intended to respect.
For example: laws that are designed to ensure confidentiality of medical conditions preclude employers from taking voluntary surveys of employees with disabilities that might aid in developing programs to provide training and work opportunities to such employees or assessing accommodation efforts; special mentoring and other programs for people of color and women may be viewed as improperly excluding Whites and men in violation of Title VII‘s absolute prohibition of discrimination on the basis of race or gender; and laws that are designed to help veterans (especially through federal contractor hiring) may have an adverse impact on women. Employers must walk a tightrope, carefully balancing competing legal obligations. The risks they face may cause some employers to opt not to adopt certain diversity initiatives for fear of being accused of “reverse” discrimination.
Further complicating the landscape for employers is the legal recognition of an increasing number of protected groups and a desire for employers to include these groups in diversity initiatives. Disability, veteran status, sexual orientation, gender expression and identity, marital status, genetic predisposition to medical conditions and domestic violence victims are among the categories of protected groups that have been added to civil rights laws in the last 25 years.
Most recently, federal and state legislatures have proposed to add the unemployed as a protected category of persons. The expanding number of protected categories has rendered virtually every employee protected from discrimination based on at least one trait. Diversity initiatives are no longer limited to programs that may help increase the percentage of women and people of color in a workforce; rather, they may be tailored to increase the presence of people who fall into other “protected classes” and, more generally, to ensure an inclusive workplace that values employees from all groups. Thus, any policy changes need to take into account modern-day notions of diversity and inclusiveness and the dramatic changes that have occurred over the last 50 years in employment policies.
Voluntary Affirmative Action and Preferential Treatment
The Supreme Court has not yet squarely addressed the question of whether promoting diversity can be a sufficient justification for a private sector employer considering race, or another protected characteristic, when making a decision.[i]
The two Supreme Court cases that have considered the validity of voluntary affirmative action programs in the employment context
– United Steelworkers v. Weber, 443 U.S. 193 (1979) and Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616 (1987)
– support only a limited remedial justification for such programs.
In Weber, the Court held that while Title VII generally prohibits race-conscious employment decisions, the statute does not prohibit “affirmative action plans designed to eliminate conspicuous racial imbalance in traditionally segregated job categories.” Weber, 443 U.S. at 209.
Nearly 25 years ago, in 1987, the Supreme Court addressed the validity of affirmative action plans in the employment sector for the next and last time. Johnson involved a challenge to a county agency‘s decision to consider gender when promoting a female employee to the position of road dispatcher over a male employee with a higher exam score. The employment decision was made by the county agency pursuant to a voluntary affirmative action plan, which provided for gender to be considered as a factor in promotion decisions within traditionally segregated jobs in which women were significantly underrepresented. At the time of the female employee‘s promotion, no woman held any of the county‘s 238 skilled craft positions, including the road dispatcher position into which the female employee was promoted.
In affirming the validity of the county‘s affirmative action plan, the Court provided clearer guidelines for what constitutes a valid plan. The Court found the county‘s plan was valid because it: (1) was aimed at remedying a manifest imbalance in a traditionally segregated job category; (2) was temporary, seeking to eradicate the effects of segregation and not simply to maintain a permanent racial and sexual balance; and (3) did not “unnecessarily trammel” the rights of non-beneficiaries by requiring non-beneficiaries to be dismissed or by creating an absolute bar to their advancement.
Together, Weber and Johnson support the proposition that race or gender-conscious decisions made pursuant to an appropriately tailored voluntary affirmative action plan that is designed to remedy the effects of discrimination in a traditionally segregated job category will not constitute discrimination under Title VII in light of the statute‘s clear legislative intent to remediate the effects of such practices.
Today, the diversity policies adopted by most employers are not narrowly focused on remediating the effects of past discrimination. Rather, most employers establish policies to advance diversity, either as a social good in its own right or as a means of offering better goods and services and competing more effectively in a diverse marketplace. Such policies typically are not temporary and they generally cover all employees and all positions within the organization, thus including groups of beneficiaries and job categories as to which there may not be predicate factual findings of traditional patterns of segregation and continuing manifest imbalances in the relevant workforce.
But the disconnect between the permissible bases for affirmative action recognized under Title VII and its regulations and the purposes that today‘s employers generally articulate for their diversity policies is not necessarily a problem. The question is how the diversity policy or initiative is used in the employment context.
Nothing in the law prohibits an employer from implementing a diversity policy with the goal of promoting respect for differences. Similarly, the law does not forbid diversity policies aimed at recruiting employees from a more diverse applicant pool or encouraging the development of diverse employees.
Legal exposure may arise, however, when there is a challenge to a discrete employment action – such as a hiring, firing or promotion decision – that adversely impacts one person or group but is taken pursuant to a policy aimed at achieving or maintaining diversity in the workplace. Employers will not have strong support under the law as it currently exists for defending such a policy or action. Under the statutory language of Title VII, as amended by the Civil Rights Act of 1991, race-conscious employment decisions cannot be defended on the basis of “business necessity” or bona fide occupational qualification.
Private-sector employers, therefore, must be cautious about whether their general workplace policies and diversity initiatives support – or might be characterized as supporting – concrete employment actions that adversely impact non-minorities, as compared with bona fide affirmative action policies that are responding to an identified, documented, remedial goal, which is limited and temporary.
Thus, employers must carefully design diversity programs to avoid legal claims by employees who claim to have been disfavored or excluded by such programs.
Diversity Best Practices
There are some initiatives that foster diversity, which are clearly permissible and, in many instances, considered best practices. Some examples include:
- establishing a senior-level diversity committee with management/executive committee representation to oversee and support diversity efforts;
- encouraging firm leaders to participate in diverse bar associations and other community organizations that foster and enhance diversity;
- striving for diverse slates of qualified candidates when making hiring and promotion decisions;
- demonstrating commitment by the General Counsel, Chief Executive Officer, managing partners and department heads to hire, promote and advance qualified, diverse applicants;
- being transparent regarding the criteria required for and timing of promotion;
- establishing a formal process for the distribution of assignments and accurate and effective feedback on career development and advancement;
- developing plans for attorneys and training in areas that promote advancement, including business development, networking and leadership skills;
- ensuring that programs that assist attorneys in managing work and personal life, such as flexible work arrangements and family care leaves, are available to all attorneys, regardless of gender and race;
- fostering a mentoring culture that includes developing and implementing an effective internal mentoring program and providing instruction on how to establish and maintain informal mentoring relationships;
- fostering opportunities for internal and external networking and encouraging participation in external networking activities; and
- requiring mandatory, ongoing education concerning diversity issues, such as discrimination, and stereotyping, for all firm members.
list is not exhaustive and these, and other initiatives, can be implemented to
foster diversity and demonstrate the employer‘s commitment to ensuring
diversity at all levels of its workforce.
[i] Although an employer may voluntarily decide to adopt an affirmative action plan, employers may be required to adopt an affirmative action plan as a result of government regulation, court order or negotiated settlement agreement. See, supra note. 28; Executive Order No. 11246, available at http://www.dol.gov/compliance/laws/comp-eeo.htm#overview (last visited Apr. 21, 2012); Local 28 of Sheet Metal Workers’ Int’l Ass’n, 478 U.S. at 448-49.