Before initiating diversity programs, HR leaders need to set specific goals -- and avoid legal pitfalls -- when enhancing development programs for current employees, expanding recruiting and hiring, and rethinking promotion and other company policies.
QUESTION: We are a large, professional, equal-opportunity employer. Despite this, we have consistently had difficulty attracting and retaining a diverse group of employees, even though we support various affinity groups within our organization. Can you please suggest some best practices for ways in which we can increase diversity in our organization without running afoul of the law. We need ideas that don't offend any of the groups whose numbers we are trying to increase or any of the groups that already make up the majority of our workforce (and are, therefore, not being target by our diversity efforts).
ANSWER: As an initial matter, it is crucial for your company to undertake a thorough internal evaluation of where you are in terms of having a diverse workforce. What are your goals and how have you tried to achieve them? Be as thorough as you can when evaluating what departments and levels of management lack diversity. Be clear about what types and classes of employees you hope to attract.
Once you fully analyze how your organization stacks up to your goals, there are three areas where you can implement best practices in order to create and maintain a diverse workforce, while steering clear of any legal pitfalls: (a) education and training programs for current employees; (b) recruitment and hiring practices; and (c) retention through promotion, advancement and other general company policies.
Biases, prejudices and stereotypes exist everywhere, subtly and overtly. You have the opportunity to help your employees become mindful of their biases, dissect them and ultimately eliminate them through education and training programs.
The emphasis of your programs should be to instill the benefits of having a diverse workforce. Encourage and demand managers who make new hires to simply look for the best person free of any biases or prejudices.
Point out to your employees that accomplishing the organization's diversity goals will yield positive business results that benefit everyone, such as increased sales revenue, greater market share, higher relative profits and elevated reputation in the community.
Some best practices involve providing training in equal-employment-opportunity rights and responsibilities to all employees (including gender awareness, diversity, harassment prevention and affirmative action); forming and supporting affinity groups; forming a diversity council with representatives of all interested organizations to discuss EEO matters; encouraging high-level management participation and interaction; publishing a pamphlet or handbook detailing EEO rights and responsibilities; conducting assessments and surveys of employees; and encouraging suggestions for improvements, while preparing to act on worthy suggestions.
An attempt to increase diversity in the recruitment and hiring processes requires an awareness of discrimination laws.
Best practices must comply with federal and state law. Federal laws include Title VII of the Civil Rights Act of 1964 (prohibits discrimination on the basis of race, color, sex, religion or national origin, collectively "protected classes"); Age Discrimination in Employment Act of 1967 (prohibits discrimination against individuals who are 40 years of age or older); the Americans with Disabilities Act of 1990 (prohibits discrimination on the basis of mental or physical disability and in certain instances requires reasonable accommodations); and the Equal Pay Act of 1963 (prohibits pay disparities on the basis of gender for the same work performed).
Consult your particular state laws as well, which, in many cases, expand the federal protected classes. For example, New York State also protects against discrimination in hiring due to sexual orientation, marital status, military status, creed, predisposing genetic characteristics and domestic violence victim or status. See New York Human Rights Law § 296. California also protects employees from discrimination on the basis of ancestry, medical condition and medical records. See California Fair Employment and Housing Act §§ 12900-12906.
Organizations should also adopt a strategic approach to advertising and marketing. Ask for input from affinity groups and underrepresented employees in a respectful way.
Focus campaigns in communities where you could attract diverse candidates. Utilize affinity groups as outreach facilitators of your organization and attract lower-income and diverse applicants through internship, work/study, co-op and scholarship programs.
When advertising open positions, be careful not to use words that may be seen as discriminating on the basis of a protected class. In particular, the U.S. Equal Employment Opportunity Commission provides examples of unlawful "trigger words" in advertisements that, for example, violate age discrimination laws, such as "young," "recent college graduate," "age over 65," and "retired person." See 29 C.F.R. § 1625.4.
Employers can go too far in the other direction as well.
An employment agency was found to have violated Title VII when it advertised that one qualification for an open position was that the applicant be a member of a minority. Even though the organization was trying to service a federal contractor with an affirmative-action program, its actions were unlawful. See EEOC Dec. No. 79-63, 26 Fair Empl. Prac. Cas. (BNA) 1778 (June 14, 1979).
The EEOC has advised that employers may, however, "encourage" historically underrepresented applicants to apply for open positions, citing competitive business reasons, such as drawing talent and ideas from "all segments of the population." An acceptable example of that cited by the EEOC was to encourage men to apply for open nursing positions, which are historically mostly female.
"Word of mouth" recruiting, i.e., enlisting existing employees to help screen new applicants conscientiously is not per se unlawful, especially when the result of the hiring process does not show a discriminatory impact. However, avoid using "word of mouth" as the exclusive means of recruiting. See United States v. Brennan, 650 F.3d 65 (2d Cir. 2011).
Discrimination on the basis of any protected class in the hiring process is particularly relevant when conducting pre-employment inquiries. The pre-employment process should be limited to inquiring whether the person is qualified for the job. Information related to an individual's status as a member of a protected class is irrelevant unless you have a legitimate business need for it.
Your organization may conduct a voluntary affirmative-action plan if the intention is to only temporarily balance old patterns of racial segregation and hierarchy, and the impact does not "trammel the interests of the white employees" or adopt a "quota" or explicit "goal" system. See United Steelworkers v. Weber, 443 U.S. 193, 208 (1979); Safeco Ins. Co. of Am. v. City of White House, 191 F.3d 675 (6th Cir. 1999).
Finally, once you are able to hire an effective, diverse workforce, the challenge is to retain those talented employees. To do so, foster an attitude throughout your organization of inclusion. Don't let diverse candidates feel abandoned once hired.
Strong onboarding, i.e., employee orientation, can go a long way toward making new employees feel included, which will spread a positive message about your organization through their communities.
Some best practices for retaining diverse employees include establishing -- and committing to -- mentoring and networking programs to help develop high-potential individuals; training individuals involved in the promotion and advancement processes in their EEO responsibilities; including EEO opportunities in advancement and promotion as factors in management evaluations; focusing on barriers to members of protected classes in promotion and advancement and eliminating them; focusing on setting goals for high-potential employees; and investing in their training and professional growth.
Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.