Recent U.S. Supreme Court rulings in Students for Fair Admission, Inc. ( Harvard ) and Students for Fair Admission, Inc. University of North Carolina ( UNC ) have raised alarms throughout the higher education sector. The Court did not address this directly, but employers are evaluating the impact of the recent decisions on their voluntary diversity goals. No, employers must be more creative in their outreach and recruitment efforts.
Title VII of Civil Rights Act of 1965 and numerous state laws prohibiting discrimination in employment on the basis of race and ethnicity as well as sex are the main governing factors for employment-based diversity programs. The U.S. Supreme Court ruled that workplace quotas or employment decisions made based on protected status of an individual, such as race, gender and/or ethnicity are illegal, even when the goal is to increase diversity.
Although it is illegal to discriminate based on race, gender or ethnicity, diversity goals can be voluntary.
Diversity and the Workplace: Considerations
Title VII allows employers to take voluntary affirmative action or diversity initiatives that aim to give all people a fair chance, regardless of race or ethnicity. This is as long as they do not make decisions based on race or gender. It is illegal to use race, ethnicity, or gender of an employee or applicant as a “plus-factor” in making employment decisions. It is legal to use robust recruiting techniques that aim to diversify the applicant pool. Even voluntary diversity goals can be allowed, provided that they are aspirational. Employers should not take into account applicants’ race or gender when making decisions about hiring and promotions.
Diversity will not be achieved overnight, given the legal precedents. Employers run a marathon even though they’d rather sprint to the end. There are some proven initiatives that can help a company move towards greater diversity.
Creative Recruitment : Employers can be creative in the recruitment process, while still staying within the legal bounds. Cast a broad net. Connect with colleges and Universities that were not a priority in the past, but offer strong academic programs relevant to your industry. At least once a year, track and evaluate the results of various recruitment efforts. Replace the recruiting targets which do not produce a pool of diverse qualified candidates with other strategies.
Play The Long Game:Consider establishing an internship program with an HBCU/HACU to produce qualified candidates for entry-level positions. Establish a mentoring program with a school that has a diverse student body to create a pipeline of new hires.
Review the Job Qualifications. Skill and experience requirements change with time. Review job descriptions periodically and the minimum requirements of positions. If necessary, revise qualifications and reassess your recruiting strategy.
ERGs (Employee Resource Groups), Mentoring Relationships, and Leadership Development Programs : Give employees the opportunity to show their interest in learning new skills or expanding knowledge so they can be better prepared for promotion opportunities. The best way to retain talent is to create an environment in which employees can see a pathway to senior roles, and are supported along the way.
Develop a comprehensive plan Diversity is not just about attracting talent, but also about retaining it. Every DEI&B program is successful because it creates a sense that people belong and have the opportunity to advance.
Federal Contractors Affirmative action Obligations
The decisions in the Harvard or UNC case do not affect the affirmative action obligations of federal contractors enforced by the Office of Federal Contract Compliance pursuant to Executive Order No. 11246. The regulations of the OFCCP require affirmative action to be implemented by federal contractors. It focuses on a robust recruitment effort and regular assessments of personnel practices in order to ensure nondiscriminatory decisions. Affirmative action, as defined in the regulations and case law applicable, prohibits race, ethnicity, and gender-based decisions. Employers are also prohibited from using race or ethnicity to make hiring and promotion decisions.
Conclusion
The Supreme Court’s rulings in Harvard and UNC brought affirmative action for higher education in line with limitations that employers have faced for decades. A less diverse student population will undoubtedly reduce the pool for diverse applicants to employment. The goal of retaining and increasing a diverse workforce is still achievable. To be successful, you need to look outside of the box and identify ways to attract, keep and promote diverse talent.
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