What's legal, and what's not?
Diversity, equity, and inclusion programs in employment are increasingly being challenged in the courts. How much do you know about the legalities? Take our quiz and find out! This is a hard one, but, as always, the answers will appear at the end of each question, so you can cheat all you want, and we'll never know.
If you make it to the end, there will be a special prize, selected especially for you.
Ready? Here we go!
No. 1: It is legal for employers to discriminate based on race, ethnicity, or sex, as long as they are discriminating against the "majority" groups.
TRUE
FALSE
ANSWER: FALSE. With very limited exceptions, discrimination is against the law, even if the victims are white or male. Or both, even.
No. 2: It is legal for employers to restrict special training and mentoring opportunities to members of certain racial or ethnic groups, or to women.
TRUE
FALSE
ANSWER: FALSE. See answer to No. 1.
No. 3: It is illegal to base a race-, ethnic-, or gender-specific diversity initiative on the fact that eligible members may have historically been victims of discrimination in society.
TRUE
FALSE
ANSWER: TRUE.
No. 4: Which of the following justify an employer's taking race, ethnicity, or sex into consideration when making employment-related decisions?
A. If it's considered to comply with a voluntary affirmative action plan that was adopted to rectify historic discrimination in the company, with respect to certain jobs that exist at the company, or with respect to the industry in which the company operates.
B. If it's considered because members of a certain race, ethnic group, or sex have historically been discriminated against in society.
C. Nothing justifies taking race, ethnicity, or sex into consideration. This is a trick question.
D. None of the above.
ANSWER: A. Here is the Guidance issued by the EEOC on voluntary affirmative action plans. And here is a very helpful blog post that Cara Crotty, who forgot more about this subject than I ever knew, wrote in 2021. This bulletin by Cara and David Phippen -- written last summer, right after the U.S. Supreme Court ruling in Students for Fair Admissions -- also has excellent information.
It's important to note that quotas or set-asides are always unlawful.
No. 5: Which of the following is NOT recommended in connection with an employer's DEI program?
A. Promoting equal employment opportunity and eliminating discrimination in the workplace.
B. Seeking to expand pools of qualified job applicants and internal candidates for promotion and other benefits.
C. Establishing Employee Resource Groups that are open only to members of certain races or ethnicities.
D. Offering leadership development to employees who have been disadvantaged in some way (for example, first-generation professionals or first-generation college graduates) without making distinctions by race, ethnicity, or sex.
E. Reviewing employment practices for discrimination, and making the changes needed to eliminate the discrimination.
F. Replacing the "old white boys' club" with a leadership program that is open only to employees of color.
ANSWER: C and F.
No. 6: Which of the following statements about Employee Resource Groups is true?
A. It's all right to have an ERG based on race that is closed to members who are not of that race.
B. ERGs should be open to any employee who wants to join and who shares the overall vision of the ERG.
C. ERGs based on race, ethnicity, or sex always violate Title VII because they are per se discriminatory.
ANSWER: B. It's fine to have ERGs based on race, ethnicity, or sex, as long as all employees who agree with the group's philosophy are eligible to join.
No. 7: DEI training could arguably create a hostile work environment if attendance is compulsory and if members of certain racial or ethnic groups, or one sex, are disparaged.
TRUE
FALSE
ANSWER: TRUE. As with all hostile work environment claims, a lot will depend on what exactly was said, and the context in which it was said. Under federal law, harassment has to be "severe or pervasive" to be legally actionable. But it is a possibility.
Whew! That was hard. In the immortal words of my law partner, Zan Blue, this IS rocket science.
HOW'DJA DO?
0-2 correct: Well, you know what? Congratulations for trying!
3-5 correct: Even a mediocre performance on this quiz makes you a star!
6-7 correct: You are a diversity genius! Take a bow!
Yes, you all did great! And here is that special gift that I promised you:
Don't get it?*
*You rule!!!
Oh, and off topic, don't forget:
Unless you're in Arizona (with the exception of the Navajo Nation) or Hawaii, in which case you can disregard this PSA.
Have a great weekend!
- Of Counsel & Chief Legal Editor
Robin also conducts internal investigations and delivers training for HR professionals, managers, and employees on topics such as harassment prevention, disability accommodation, and leave management.
Robin is editor in chief ...
This is Constangy’s flagship law blog, founded in 2010 by Robin Shea, who is chief legal editor and a regular contributor. This nationally recognized blog also features posts from other Constangy attorneys in the areas of immigration, labor relations, and sports law, keeping HR professionals and employers informed about the latest legal trends.
