Building a Diverse Bench—Legally.

Julie Pugh, David Stewart, & Lee P. Geiger 

The value of diversity in leadership continues to energize HR leaders’ broad initiatives and day-to-day decision making. Forward-thinking companies routinely implement diversity initiatives, employ diversity and inclusion managers, and host diversity programming. However, HR leaders continue to recognize a lack of diversity in their organizations as a prominent issue, despite this consistent focus on growing diversity. A recent Gartner survey of HR executives confirmed that developing effective leaders and a diverse leadership bench are their top two challenges of 2019.[1] How does an organization hire and develop the best, diverse bench of future leaders while minimizing legal risk? Here are a few strategies and pitfalls to consider.

In order to build a diverse workforce, you have to hire a diverse workforce. Initiatives and policies directed at increasing diversity can be legal, but must be implemented in such a way that no other individual or group faces detriment, whether due to real or perceived favoritism.

Employers must avoid making a hiring or promotion decision because of a person’s race, gender, or any other protected category, even for the purpose of promoting a diversity initiative, or risk running violating federal, state, and local anti-discrimination laws. Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act, and laws protecting genetic information, veteran status, and gender equity all play a role in protecting workers from discrimination at the federal level. Importantly, states and local governments will often have their own, often stricter rules in place.

Employers can run into trouble with these statutes where the desired result—more diversity—is praiseworthy and legitimate, but the process results in unfair treatment towards an individual in a non-protected class. These “reverse discrimination” cases are often brought by the individuals who feel wronged after not getting a position or missing a promotion. These cases typically originate at the Equal Employment Opportunity Commission, which has policed diversity hiring in the past.

An employer could make the perfectly reasonable observation that its workforce needs more racial diversity, and initiate a hiring strategy to that effect. But if the employer decides it will only interview racial minorities, or hires a minority solely because that person is a minority, the employer is exposed to liability for discrimination against others. Walking this tightrope is not easy, especially for newer and rapidly growing companies. Here are some tips for implementing your diversity initiatives with a deft touch.

Hiring Diversity. There are many legitimate ways an employer can hire diversity without illegally discriminating. Employers should focus on options such as expanding the applicant pool and eliminating unnecessarily limiting application questions or criteria. Employers must also consider how policies or initiatives may affect diversity long term. A veterans hiring initiative, for instance, may disparately affect gender diversity since most veterans are men. Likewise, holding job fairs at certain schools could influence the socioeconomic diversity of your applicant pool.

There are also workplace culture considerations. Employers who promote respect for different perspectives and cultures will likely find it easier to bring in candidates who value the same. These are positive ways to influence the hiring of a diverse workforce without allowing individuals to gain the impression that diversity may be the main impetus behind a personnel decision.

Retaining Diversity. Retaining your best people is never easy. The talent that individuals bring to the job is why your organization desires to invest in them—and why other organizations are pursuing them. Fortunately, when it comes to building a diverse workforce, many of the same practices that build a successful hiring process will aid in the quest to retain diverse leaders.

Retaining and promoting diversity within your organization will depend even more on the culture your organization has built and earned over the years. Instituting formal mentorship programs, educating employees on diversity issues, and ensuring transparency surrounding promotion opportunities will help foster diversity retention.

These methods also support heading off expensive litigation. Transparency at every level of your organization is a vital safeguard from individuals feeling as though they missed out on an opportunity for a discriminatory reason, rather than a merit-based one. Encourage your managers to have candid conversations during performance evaluations and evaluate accurately—sometimes harshly—so that no promotion decision is a surprise. This annual documentation could be a vital defense in any reverse discrimination suit where the litigant is claiming a protected-class person was promoted for a discriminatory reason.

Strategies for Success. Taking a proactive—rather than a reactive—approach to building a diverse workforce is the best method for finding the right individuals for your organization while avoiding potential legal trouble. Organizations should review their hiring and promotion processes to ensure they are complying with the law, educate managers on diversity initiatives and how they can assist in carrying them out, and document all relevant aspects of employee evaluation to back up their decisions. Analyze how to make the hiring and promotion processes more transparent and foster open communication about what jobs are available.

If diversity is a concern of your organization, consider contacting an attorney to review your diversity hiring initiatives to ensure you are maximizing your success while staying on the right side of the law. If you don’t have one already, consider creating a new internal role to focus the efforts of your diversity mission. Most importantly, communicate with leadership and employees regularly about the value of achieving your diversity goals. Smart organizations build an atmosphere that values diversity organically and attains buy-in from members at every level.

[1] 2019 Gartner Future of HR Survey.

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