In Title VII parlance, the "inexorable zero" is the complete absence of a protected group from a workforce or job classification. When accompanied by evidence of a gross statistical disparity between the employer’s homogenized workforce and the available applicant pool, courts (and juries) are dubious of the zero and likely to award damages to those who were excluded. See this EEOC lawsuit for an example.

The complex legal rationale for such outcomes is: if it waddles like a duck and quacks like a duck, it’s probably a duck. Okay, not so legal, but you get the point.

Today, the inexorable zero in employment is more the exception than the rule. And when it exists, there are lawful actions an employer can take to remedy the disparity.

But more on that later.      

The rise of workplace DEI and resulting backlash

The murder of George Floyd by a police officer in Minneapolis in 2020 sparked a flood of protests across the country. In response, many corporate executives pledged to hire more people of color and remove product images and messages perceived to be discriminatory.

Those commitments sparked a rise in DEI initiatives aimed at increasing diversity in the workplace.

But in our polarized society every action seemingly generates an equal and opposite reaction. One such reaction to DEI was summed up in a post by billionaire Bill Ackman who described DEI as “an inherently racist and illegal movement in its implementation even if it purports to work on behalf of the so-called oppressed.”

While I believe that description to be both extreme and inaccurate, my purpose here is not to take sides on its underlying motivations.

Instead, I want to focus on Mr. Ackman’s use of the word “implementation.” After all, I am an employment lawyer, not a political pundit, and how an employer implements its DEI initiatives can make the difference between avoiding a lawsuit and paying damages.

The backlash against DEI reaches the Supreme Court of the United States.

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and University of North Carolina, the universities admitted that they considered race as factor in making admissions decisions.

Harvard did not claim that this practice was needed to remedy the effects of prior discrimination. Rather, it claimed that use of race as a factor was needed to reap the multiple benefits of a diverse student body.

The Court rejected that justification and held that “eliminating racial discrimination means eliminating all of it.” That includes not tipping the scales in favor of a black applicant versus white one, or an applicant of Asian descent versus one of Hispanic descent.

While Students for Fair Admissions was not a Title VII employment discrimination case, those challenging workplace DEI initiatives often rely on its holding.

The bottom line for employers is that -- with one potential exception -- DEI initiatives cannot put a finger on the scales of employment decisions because of a person’s race, sex, or other protected characteristic.

Things to do to avoid the backlash

If you are a member of the inexorable zero club, or otherwise have a gross statistical disparity between your workforce and the available applicant pool, you need more than just a DEI initiative.

Remedying a gross statistical disparity by making a protected characteristic a “plus” factor in employment decisions is potentially lawful, according to the Equal Employment Opportunity Commission.

The EEOC’s guidelines on voluntary affirmative action requires, among other things: (1) a reasonable self-analysis reflecting a manifest underrepresentation of a protected group in the workforce; (2) a written affirmative action plan that is narrowly tailored to cure that disparity; (3) protections against adverse consequences for those outside the protected group; and (4) provisions for ending the plan once the underrepresentation has been remedied. However, reliance on the EEOC’s guidelines after Students for Fair Admissions and after Loper Bright, where agency interpretations may receive less deference from the courts, may be questionable.

Hopefully, the number of employers needing to adopt such a plan is small.

But what about the rest of you? Seizing on the critical word in Mr. Ackman’s post – what should your managers be doing to implement your DEI initiatives in this post Students for Fair Admissions world?

At a minimum, I think they should:

No. 1. Review your company’s recruiting practices and ensure that they promote diversity, equity and inclusion. Whether you are seeking applicants with high school, trade school, college, or post graduate degrees, seek them from communities, schools, and other sources that will ensure a diverse applicant pool.

No. 2. Review hiring and promotion criteria to ensure that they do not favor or disadvantage any group, while still promoting a diverse workforce. This could include:

(a) revising hiring policies to include appropriately weighted criteria relating to unique challenges that the applicant has overcome and which support their ability to do the job; or

(b) revising promotion policies to include appropriately weighted criteria relating to the candidate’s contributions to the company’s DEI initiatives and adherence to EEO policies.

Both are neutral on their face and equally available to all.

No. 3. Review all internship, fellowship, and mentorship programs to ensure that they are open to all and not limited to one protected group, while still including criteria aimed at promoting the company’s DEI initiative. This could include offering such programs to those in a lower economic stratum of society. Poverty, and economic challenges of all types, are blind to race, sex, national origin, and all other protected characteristics.

No. 4. Vigilantly ensure compliance with your DEI initiatives and take corrective action when needed. That includes monitoring compliance with the ever-evolving legal landscape of state laws on DEI, ensuring compliance by employees and managers alike, and taking prompt corrective action when they engage in conduct contrary to those ideals

Promoting a diverse workforce does not require putting a finger on the employment scales based on a protected characteristic. That is way too easy, unlawful, and since Students for Fair Admissions, in the cross hairs of those opposed to DEI.