In addition to her presentation at the Association of Corporate Counsel’s Annual Meeting on “Keeping DEI Legal: How to Lawfully Use Race and Gender in the Selection Process,” Cara Crotty and her co-presenter Dawn Blume of BP America, Inc. authored an article published by ACC Docket on Oct. 20, 2022 covering the same topic.
“Employers are creative and strategic when it comes to workforce diversity initiatives,” Crotty and Blume wrote. “Sometimes, however, that creativity — and the motivation to move the needle on diversity metrics — can create unintended consequences. There are two competing notions at play here: the legal requirement to make employment decisions that are not based on protected characteristics, and the desire to ensure underrepresented groups are fully considered in the employment process. How can employers do the latter without violating the former?”
In addressing these risks of running afoul of legal requirements in pursuit of a more diverse workplace, Crotty and Blume highlighted principles of non-discrimination as it relates to protected characteristics under Title VII of the Civil Rights Act and requirements from the U.S. Equal Employment Opportunity Commission (EEOC) as it relates to the screening process and hiring decisions. Based on the EEOC’s guidelines, the authors also provided circumstances where voluntary affirmative action may be appropriate, including:
- Adverse effect. Employers may use affirmative action procedures if an analysis shows actual or potential adverse impact caused by existing or contemplated practices.
- Effects of prior discriminatory practices. Employers “may take affirmative action to correct the effects of prior discriminatory practices,” which “can be initially identified by a comparison between the employer’s work force, or a part thereof, and an appropriate segment of the labor force.”
- Limited labor pool. “Because of historic restrictions by employers, labor organizations, and others, there are circumstances in which the available labor pool, particularly of qualified minorities and women, for employment or promotional opportunities is artificially limited.”
The attorneys concluded with practical guidance for establishing an affirmative action plan that contains a reasonable self-analysis, a reasonable basis for concluding action is appropriate and a reasonable action. Ultimately and to remain compliant, a plan should:
- Be narrowly tailored to address the issues identified in the self-analysis;
- Avoid restrictions on opportunities for non-protected groups;
- Maintain race/gender-conscious steps for a limited time and only for as long as needed to achieve the objectives identified;
- Reasonably relate any goals and timetables to the availability of qualified applicants and the number of employment opportunities; and
- Be dated and written.
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