Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Despite best intentions, employers may be unknowingly setting themselves up for future lawsuits by improperly broadening diversity and inclusion initiatives. Many employers are dedicating more resources than ever to improving their corporate culture by focusing on diversity and inclusion, particularly in light of recent events. The intent for many is to increase the representation of underrepresented groups in their organization. While that is admirable, specific strategies may actually lead to allegations of state and federal anti-discrimination law violations. Employers should take appropriate measures so that their well-intended efforts to increase inclusivity and social responsibility do not cause damage in the long run.
In general, diversity and inclusion initiatives should be flexible and case-specific.1 Although the applicable law can vary based on jurisdiction and depending on whether the employer is a public institution (which is governed by the United States Constitution) or private institution (which is governed by state and federal anti-discrimination laws), there are limitations as to how an organization can lawfully achieve diversity and inclusion aspirations.2
Rather than quotas or rigid requirements, employers should focus on opportunity while keeping ultimate decisions based on skillset. There are both short- and long-term initiatives that could further inclusivity. For example, relatively quick action can and should be taken to eliminate bias in the talent-recruitment process and may immediately improve hiring. On the other end of the spectrum, employers could invest significant time and money into developing a robust mentorship program that encourages and prepares employees from underrepresented groups to pursue senior leadership positions.
In order to minimize the risk that may be created by diversity and inclusion initiatives, employers should consult with legal counsel to tailor their efforts to the specifics of the organization and confirm that such initiatives do not unnecessarily expose the employer to legal action.
1 See Johnson v. Transportation Agency, 480 U.S. 616 (1987).
2 See Students for Fair Admissions, Inc. v. President and Fellows of Harvard, 397 F.Supp.3d 126 (D. Mass. 2019); Richmond v. J. A. Croson Co., 488 U.S. 469 (1989) (cautioning against a “rigid racial quota”).