The Legal Issues Involved in Implementing a Metrics-Driven Diversity, Equity, and Inclusion Program

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For many employers, diversity, equity, and inclusion (“DEI”) programs are no longer mere “add-ons” to existing human resources initiatives—they are essential to conducting business in the current climate.  The events of summer 2020, including the incidents and protests involving George Floyd, Breonna Taylor, Ahmaud Arbery, Tony McDade, Elijah McClain, Jacob Blake, and others, have refocused attention on the racial and gender inequities present in our society today.  Many employers are doing their part to ensure that their workplaces are as diverse, equitable, and inclusive as possible.

Although there is no legal requirement to implement a DEI program, employers are doing so because the programs provide a clear example of their commitment to providing a diverse and inclusive work environment and firmly establish DEI as a strategic goal for the organization.  DEI programs are also useful to communicate defined action items in support of the company’s DEI values.  There are numerous benefits to DEI programs, including, among other benefits, attracting and retaining top talent, driving innovative and creative solutions, and enhancing financial performance and profitability.

But even with the best intentions, employers should be careful to ensure that their DEI programs are consistent with state and federal law.  And when employers use metrics as a part of their DEI program, they must remain cognizant of their obligations under Title VII of the Civil Rights Act of 1964. According to the Equal Employment Opportunity Commission, an employer may adopt programs with defined metrics when it “identifies imbalance in traditionally segregated job categories.” www.eeoc.gov/best-practices-private-sector-employers. The plan may not “unnecessarily trammel the rights of non-targeted groups, usually non-minorities or men.”  The plan must “be designed to break down patterns of segregation and to open employment opportunities for targeted groups, usually minorities, women, or persons with disabilities.” Id.  Significantly, the plan may not require the discharge of non-targeted employees, create an absolute bar to advancement of non-targeted employees, or allow for the express use of quotas, which it defines as the “inflexible reliance solely on numbers that ignore qualifications.” Id.

Thus, in crafting a DEI program, it is advisable for companies to express that they seek to promote diversity, equity, and inclusion in their workplace, and, consistent with that goal, hire only the most qualified candidates.  A recent example of a successful defense of a DEI program against claims of reverse discrimination came in White v Oakland County Community College, NO. 19-10465; 2020 WL 5908319 (E.D. Mich. Oct. 6, 2020).  There, the plaintiff, a white female, alleged that a community college discriminated against her in violation of Title VII by hiring an African American woman to fill the position of Academic Support Center (“ASC”) paraprofessional.  The plaintiff “claim[ed] that she was the most qualified applicant for the position,” she “was the only applicant who had prior experience as an ASC Paraprofessional, and . . . she already was performing all of the same duties in her current role as a part-time ASC Paraprofessional.” Id. at *2.  The community college claimed that it picked the African American candidate because it believed she “performed the best of all the candidates during the interview,” and that she was the “most qualified candidate for the position even though, in contrast to Plaintiff, she lacked experience performing all of the specific duties of an ASC Paraprofessional.”  Id. The community college moved to dismiss the case.

The court granted the community college’s motion, finding that there was “no evidence that [the community college] considered race as a factor in making its hiring decision.” Id. at *5.  The court also found that there was “no statistical or historical evidence that [community college] unlawfully considered race in past employment decisions.”  Id. In dispelling the notion that a report [the community college] published concerning the “promotion of racial diversity” was evidence of bias, the court found that the plaintiff “faile[d] to explain how this . . . report creates an inference that [the  community college] considered race in selecting [the African American candidate] over Plaintiff.” Id. In sum, the court found that there was “no evidence of any background circumstances suggesting that [the community college] is the unusual employer that discriminates against the majority,” and it dismissed the plaintiff’s case as a result.

Best Practices:

  1. Identify issues that have created diversity, equity, and inclusion imbalances in the past and craft solutions around those issues.  It is advisable to use an outside consultant to conduct this analysis to prevent biases and ensure appropriate methodology.
  2. Seek solutions to each barrier in the pipeline; for example, companies should consider recruiting, retention, and leadership advancement when crafting DEI programs.
  3. Refrain from using rigid quotas or set-asides.  Rather, in stating targets, employers should use language such as “aim to double the percentage of executives,” or “we seek to hire crews that better reflect the demographics” of a particular population.
  4. Review DEI programs regularly to ensure that goals and timetables remain appropriate and there is no undue harm to non-targeted groups.
  5. Actively and consistently communicate about the DEI program and its goals, reiterating that discrimination is not tolerated under any circumstances.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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