Inexorable. Something that cannot be moved, stopped, persuaded, or altered.
In Title VII parlance, the "inexorable zero" is the complete absence of a protected group from a workforce or job classification. When accompanied by evidence of a gross statistical disparity between the employer’s homogenized workforce and the available applicant pool, courts (and juries) are dubious of the zero and likely to award damages to those who were excluded. See this EEOC lawsuit for an example.
The complex legal rationale for such outcomes is: if it waddles like a duck and quacks like a duck, it’s probably a duck. Okay, not so legal, but you get the point.
Today, the inexorable zero in employment is more the exception than the rule. And when it exists, there are lawful actions an employer can take to remedy the disparity.
But more on that later.
The rise of workplace DEI and resulting backlash
The murder of George Floyd by a police officer in Minneapolis in 2020 sparked a flood of protests across the country. In response, many corporate executives pledged to hire more people of color and remove product images and messages perceived to be discriminatory.
Those commitments sparked a rise in DEI initiatives aimed at increasing diversity in the workplace.
But in our polarized society every action seemingly generates an equal and opposite reaction. One such reaction to DEI was summed up in a post by billionaire Bill Ackman who described DEI as “an inherently racist and illegal movement in its implementation even if it purports to work on behalf of the so-called oppressed.”
While I believe that description to be both extreme and inaccurate, my purpose here is not to take sides on its underlying motivations.
Instead, I want to focus on Mr. Ackman’s use of the word “implementation.” After all, I am an employment lawyer, not a political pundit, and how an employer implements its DEI initiatives can make the difference between avoiding a lawsuit and paying damages.
The backlash against DEI reaches the Supreme Court of the United States.
In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and University of North Carolina, the universities admitted that they considered race as factor in making admissions decisions.
Harvard did not claim that this practice was needed to remedy the effects of prior discrimination. Rather, it claimed that use of race as a factor was needed to reap the multiple benefits of a diverse student body.
The Court rejected that justification and held that “eliminating racial discrimination means eliminating all of it.” That includes not tipping the scales in favor of a black applicant versus white one, or an applicant of Asian descent versus one of Hispanic descent.
While Students for Fair Admissions was not a Title VII employment discrimination case, those challenging workplace DEI initiatives often rely on its holding.
The bottom line for employers is that -- with one potential exception -- DEI initiatives cannot put a finger on the scales of employment decisions because of a person’s race, sex, or other protected characteristic.
Things to do to avoid the backlash
If you are a member of the inexorable zero club, or otherwise have a gross statistical disparity between your workforce and the available applicant pool, you need more than just a DEI initiative.
Remedying a gross statistical disparity by making a protected characteristic a “plus” factor in employment decisions is potentially lawful, according to the Equal Employment Opportunity Commission.
The EEOC’s guidelines on voluntary affirmative action requires, among other things: (1) a reasonable self-analysis reflecting a manifest underrepresentation of a protected group in the workforce; (2) a written affirmative action plan that is narrowly tailored to cure that disparity; (3) protections against adverse consequences for those outside the protected group; and (4) provisions for ending the plan once the underrepresentation has been remedied. However, reliance on the EEOC’s guidelines after Students for Fair Admissions and after Loper Bright, where agency interpretations may receive less deference from the courts, may be questionable.
Hopefully, the number of employers needing to adopt such a plan is small.
But what about the rest of you? Seizing on the critical word in Mr. Ackman’s post – what should your managers be doing to implement your DEI initiatives in this post Students for Fair Admissions world?
At a minimum, I think they should:
No. 1. Review your company’s recruiting practices and ensure that they promote diversity, equity and inclusion. Whether you are seeking applicants with high school, trade school, college, or post graduate degrees, seek them from communities, schools, and other sources that will ensure a diverse applicant pool.
No. 2. Review hiring and promotion criteria to ensure that they do not favor or disadvantage any group, while still promoting a diverse workforce. This could include:
(a) revising hiring policies to include appropriately weighted criteria relating to unique challenges that the applicant has overcome and which support their ability to do the job; or
(b) revising promotion policies to include appropriately weighted criteria relating to the candidate’s contributions to the company’s DEI initiatives and adherence to EEO policies.
Both are neutral on their face and equally available to all.
No. 3. Review all internship, fellowship, and mentorship programs to ensure that they are open to all and not limited to one protected group, while still including criteria aimed at promoting the company’s DEI initiative. This could include offering such programs to those in a lower economic stratum of society. Poverty, and economic challenges of all types, are blind to race, sex, national origin, and all other protected characteristics.
No. 4. Vigilantly ensure compliance with your DEI initiatives and take corrective action when needed. That includes monitoring compliance with the ever-evolving legal landscape of state laws on DEI, ensuring compliance by employees and managers alike, and taking prompt corrective action when they engage in conduct contrary to those ideals
Promoting a diverse workforce does not require putting a finger on the employment scales based on a protected characteristic. That is way too easy, unlawful, and since Students for Fair Admissions, in the cross hairs of those opposed to DEI.
- Partner
Frank is a traditional labor lawyer, certified mediator and employment litigator who has arbitrated, litigated, tried or settled more than 250 cases. He has successfully argued cases on behalf of employers in nine of the twelve ...
Diversity, equity, and inclusion has been the bedrock of our firm since we opened over 75 years ago. As we like to say, it is in our DNA. We believe that to foster diverse leadership and urge diversity of thought, we must do what we can to advance the conversation about diversity, equity, inclusion, accessibility, and belonging in the workplace and the communities in which our workplaces thrive. Through our blog, we share our insights from the perspective of both an employer and employee, regarding emerging issues that affect diverse leaders and workforces. We hope you enjoy our tidbits of legal and practical information, wisdom, and humor. Thanks for joining the conversation!
Subscribe
Contributors
Archives
- October 2024
- September 2024
- August 2024
- July 2024
- June 2024
- March 2024
- August 2022
- June 2022
- April 2022
- March 2022
- February 2022
- October 2021
- June 2021
- May 2021
- April 2021
- October 2020
- May 2020
- March 2020
- February 2020
- January 2020
- December 2019
- June 2019
- March 2019
- December 2018
- October 2018
- July 2018
- June 2018
- May 2018
- February 2018
- January 2018
- November 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016