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How to hire for diversity while avoiding reverse discrimination claims

By Higginbotham on October 09 , 2019

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Businesses around the country are striving to employ a diverse workforce. While this is a worthy goal, pursuing it in the wrong way could lead to problems. Specifically, if a company isn’t careful, pushing for diversity could result in claims of reverse discrimination.

Why Diversity Matters

According to a report from McKinsey, improving workplace diversity could improve a company’s bottom line. Gender and ethnic diversity are positively correlated with profitability. The difference isn’t small, either. Diverse teams produce financial returns that are 35 percent higher than the industry mean.

In some cases, pursuing diversity may be legally required. While discrimination against protected classes has been illegal throughout the country for decades, California has recently taken requirements one step further. In 2018, a new law was passed that requires companies to have female directors on their boards. The law, called Women on Boards, applies to all publicly held corporations with principal executive offices in California. To comply, companies must have at least one female director by Dec. 31, 2019, and one or two by Dec. 31, 2021, depending on the size of the board.

Reverse Discrimination

Under the Civil Rights Act of 1964, it is illegal to discriminated against someone on the basis of race, color, religion, national origin or sex.

When applying this law, it’s common to focus on minorities and underrepresented groups. For example, when talking about discrimination on the basis on sex, we may focus on discrimination against women. However, the law also prohibits discrimination against men.

In 2009, in Ricci v. DeStefano, the Supreme Court ruled that the City of New Haven was guilty of discrimination. The New Haven Fire Department had discarded exam results because the pass rate for black candidates was lower than the pass rate for white candidates. White candidates sued. According to Justice Anthony Kennedy, “Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII.”

In more recent years, other lawsuits have made similar claims of reverse discrimination. Here are just a few:

  • According to NBC Chicago, two white coaches sued an Indiana school district over claims of reverse discrimination in 2018.

  • Forbes reports that white male cops are suing the San Francisco Police Department over claims of race and gender discrimination.

  • JPMorgan settled for $5 million after a male employee filed a lawsuit claiming the company’s parental leave policy discriminated against working dads, according to the Insurance Journal.

Achieving Diversity While Avoiding Reverse Discrimination

Companies must find ways to promote diversity without discriminating against candidates based on race, sex or other protected classes.

  • Check for bias in your hiring practices. If your workforce is not diverse, it may be due to bias in the way you promote or hire. For example, your job advertisements may not be reaching diverse candidates.

  • Create a welcoming workplace culture. If your workplace is hostile to women, for example, you will have a hard time attracting and retaining women, regardless of your other efforts.

  • Offer everyone the same benefits and flexibility. Perhaps your company wants to offer flexible hours and work-from-home options to help working moms. That sounds great, but what about working dads? Also, what about workers who don’t have children but do have other obligations? As the case against JPMorgan proved, offering benefits to mothers but not fathers can be a costly mistake.

  • Establish relevant job requirements. As Ricci v. DeStefano showed, changing requirements based on race or sex could result in claims of discrimination.

Need assistance with HR functions such as recruiting, hiring or job description development? Contact our HR Services Team.

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