Legal Implications of Targeted Diversity Hiring Practices Mark Mathison

Overview Nondiscrimination vs. Affirmative Action vs. Diversity Initiatives Mandatory Affirmative Action Plans Voluntary Affirmative Action Plans Wellness Initiatives Examples of Diversity Initiatives How to Proceed 2

Nondiscrimination vs. Affirmative Action vs. Diversity Initiative Nondiscrimination: the practice of treating all persons or groups of people fairly regardless of their race, sex, etc. –Discrimination against certain protected classes is prohibited by Title VII, the Minnesota Human Rights Act, and other federal, state and local laws 3

Nondiscrimination vs. Affirmative Action vs. Diversity Initiative Affirmative Action: the practice of improving the job opportunities of members of groups that have been treated unfairly in the past because of their race, sex, etc. –Remedial approach –Selective in targeting certain protected classes that have been the target of past discrimination –Requires an Affirmative Action Plan 4

Nondiscrimination vs. Affirmative Action vs. Diversity Initiative Diversity Initiative: a business management concept under which employers voluntarily promote an inclusive workplace. –Strategically driven, focusing on benefits to the organization –Inclusive, encompassing everyone in the workplace, not just defined, protected classes 5

Mandatory Affirmative Action Plans Required for federal, state, and local government contractors with –A minimum number of employees; and/or –A minimum dollar amount in a government contract(s) Affirmative Action Plans for: –Women –Minorities –Individuals with disabilities –Protected veterans 6

Mandatory Affirmative Action Plans Include –Offers to self-identify for applicants and employees –Data collection –Goals and benchmarks –Required notices and postings –Recruitment efforts to target protected classes 7

Voluntary Affirmative Action Plans Legal Standard: Proof of a conspicuous imbalance in traditionally segregated job categories –Some Circuit Courts of Appeal require proof of a conspicuous racial imbalance in the employer’s workforce 8

Voluntary Affirmative Action Plans Legal Standard (cont.) The program must be reasonably related to its remedial purpose. –Cannot unnecessarily trammel rights of the majority –Goal can be to attain, but not maintain, diversity –Cannot be indefinite in length 9

Voluntary Affirmative Action Plans Implications and Practical Tips To engage in voluntary affirmative action measures, your organization should have a written plan that: –Analyzes and confirms a compelling interest in diversity –Articulates the goals (not quotas) of program –Discusses means of accomplishing goals; what race-neutral alternatives were considered; why alternatives were unworkable; and why race-conscious measures are necessary 10

Voluntary Affirmative Action Plans Implications and Practical Tips (cont.) Limit duration of plan and review plan regularly –Have goals been met? –Do the race-conscious measures continue to be the only means of achieving goals? 11

Voluntary Affirmative Action Plans Implications and Practical Tips (cont.) Train personnel involved in decision- making –Hiring recruiters –Decision-makers –Search committees 12

Wellness Programs Applicable Laws –Affordable Care Act (ACA) –Health Insurance Portability and Accountability Act (HIPAA) –Americans with Disabilities Act (ADA) –Genetic Information Non-Discrimination Act (GINA) –Lawful consumable product statutes –Laws that protect employee privacy 13

Wellness Programs Participation-based programs pose less risk than outcome-based initiatives –Employers still must analyze whether they are excluding disabled employees from accessing benefits under the program Programs must be truly voluntary Manage employees’ health information with care 14

Examples of Diversity Initiatives General Mills –Professional development training and mentoring networks for different protected classes –Works with minority and women- owned suppliers 15

Examples of Diversity Initiatives AT&T –Scholarships and fellowships –Leadership development programs for recent college graduates, with 42% women and 46% people of color –Employee resource groups, some of which focus on protected classes 16

Examples of Diversity Initiatives Target –Recruits at career fairs held by organizations that represent different protected classes –Diversity and inclusion business councils which provide professional development opportunities for employees. The councils represent six groups: African American; Asian American; LGBT; Hispanic; military; and women –Works with agencies, schools, and government programs to hire members of the military 17

Examples of Diversity Initiatives Sodexo –Uses diversity dashboards and scorecards to measure and improve initiatives –Ties a percentage of annual incentives for executives and managers to achievement of annual diversity targets 18

Risks Reverse discrimination lawsuits Note that diversity efforts at other organizations may be based on an affirmative action plan Efforts to recruit members of one protected class may result in disparate impact on another – e.g., veterans and women 19

How to Proceed Goals not quotas If no affirmative action plan, be sure that your diversity initiatives are inclusive of all employees, not just members of protected classes If voluntary affirmative action plan, reassess often and follow the tips outlined above Do not exclude individuals outside protected classes from participation in groups, events, etc. 20

Questions 21