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23 Jun Seeking a More Diverse Workforce Could Get You Sued
We’re at a historic crossroad right now. Not only has the Supreme Court interpreted Title VII as protecting the LGBT community, but the Black Lives Matter (BLM) movement has never been more powerful. On top of that, more companies are marketing their values as a way to connect with like-minded consumers.
Companies may pledge to hire more minority applicants and promote more minority employees into management positions not only to do the right thing but to improve their image and sell more goods and services. This is all well and good, as long as it’s done the right way. If not, White job seekers and employees could claim they’re the victim of race discrimination.
Anti-discrimination laws cover people of all races. White Americans have successfully sued employers for race discrimination in the past and it will happen again in the future. If employers want to expand opportunities for minorities, they should do it in a way that will be fair and won’t get them sued.
Setting hard number goals could add ammo to a reverse-discrimination claim. The Washington Post reports that Adidas has pledged that at least 30 percent of all open positions in the US are to be filled with Black and Latino employees. That would open up all kinds of discovery as to how that goal was going to be reached and how candidates were going to be selected. It could be especially fraught if the company has gotten to 29.9%, the White plaintiff lost an opportunity to a Black applicant, and the company hit the 30% mark.
Adidas’ explicit goal could also be interpreted as direct evidence of discriminatory bias. If a judge sees it that way, instead of the plaintiff carrying the burden of proof, it shifts to the defendant. A case can live or die depending on who has the burden of proof.
The plaintiff in a race discrimination case has the initial burden of establishing a prima facie claim of discrimination. The person needs to show:
- The party is a member of a protected class: The plaintiff would establish his or her skin color is considered white and he or she is Caucasian
- The decision-maker knew the employee’s protected class when the hiring decision was made: Since job interviews usually are in person, though now they’re on video conferences too, if the decision-maker saw the plaintiff, this element would be established. It’s possible that if the hiring process was entirely on the telephone and the decision-maker never saw a photo of the person, this issue could be disputed
- An adverse employment decision took place: The plaintiff wasn’t hired or promoted
- He or she was qualified to fill the job
If the plaintiff carries the burden of establishing these issues, the employer needs to provide a legitimate, nondiscriminatory reason for its actions. That’s normally the successful candidate is more qualified and there’s no evidence of racial bias by the decision-maker.
If the non-White person is hired in the heat of the moment and not more qualified, the employer could claim a reason was more workplace diversity, but they’re probably on less than firm ground. Usually, government employers, employers doing business with a government entity, and those subject to a court order have affirmative action plans. Citing a binding plan that was followed in good faith would help the employer’s case.
A company like Adidas (assuming it has no plan in place), could voluntarily create one. The Equal Employment Opportunity Commission states that to be given weight, the plan needs to meet several requirement. The one most difficult for Adidas would be it’s “reasonable.” The agency cites three examples of when a voluntary affirmative action plan would be “reasonable” due to the employer’s policies or practices:
- They have or tended to have an adverse effect on opportunities of previously excluded minority groups, or groups whose employment or promotional opportunities have been artificially limited
- They leave the effects of prior discrimination uncorrected
- They result in disparate treatment
Assuming Adidas doesn’t want to admit to past or current wrongdoing, it would be hard to justify not hiring a White employee so it could simply add a non-White employee. A public stand by an employer to increase non-White employment could be cited by a plaintiff as evidence an affirmative action plan is a sham, thrown together to justify a pre-determined goal.
If the employer can carry its burden of a legitimate, nondiscriminatory reason, the burden goes back to the plaintiff to carry his or her burden of proving race discrimination.
There are many legitimate reasons why an employer should have diverse employees and managers. There are any number of things that could be done to reach that goal. But they take time, making a meeting a hard goal quickly difficult, if not impossible, without resorting to actions that could get the employer sued.