Legal Implications of
Targeted Diversity Hiring Practices
Mark Mathison
mark.mathison@gpmlaw.com
Overview
• Nondiscrimination vs. Affirmative Action
vs. Diversity Initiatives
• Mandatory Affirmative Action Plans
• Voluntary Affirmative Action Plans
• Wellness Initiatives
• Examples of Diversity Initiatives
• How to Proceed
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Nondiscrimination vs. Affirmative
Action vs. Diversity Initiative
• Nondiscrimination: the practice of
treating all persons or groups of
people fairly regardless of their
race, sex, etc.
– Discrimination against certain
protected classes is prohibited by Title
VII, the Minnesota Human Rights Act,
and other federal, state and local laws
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Nondiscrimination vs. Affirmative
Action vs. Diversity Initiative
• Affirmative Action: the practice of
improving the job opportunities of
members of groups that have been
treated unfairly in the past because of
their race, sex, etc.
– Remedial approach
– Selective in targeting certain protected
classes that have been the target of past
discrimination
– Requires an Affirmative Action Plan
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Nondiscrimination vs. Affirmative
Action vs. Diversity Initiative
• Diversity Initiative: a business
management concept under which
employers voluntarily promote an
inclusive workplace.
– Strategically driven,
focusing on benefits
to the organization
– Inclusive, encompassing
everyone in the
workplace, not just
defined, protected classes
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Mandatory Affirmative Action Plans
• Required for federal, state, and local
government contractors with
– A minimum number of employees; and/or
– A minimum dollar amount in a government
contract(s)
• Affirmative Action Plans for:
–
–
–
–
Women
Minorities
Individuals with disabilities
Protected veterans
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Mandatory Affirmative Action Plans
• Include
– Offers to self-identify for applicants and
employees
– Data collection
– Goals and benchmarks
– Required notices and postings
– Recruitment efforts to target protected
classes
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Voluntary Affirmative Action Plans
Legal Standard:
• Proof of a conspicuous imbalance in
traditionally segregated job categories
– Some Circuit Courts of Appeal require proof
of a conspicuous racial imbalance in the
employer’s workforce
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Voluntary Affirmative Action Plans
Legal Standard (cont.)
• The program must be reasonably
related to its remedial purpose.
– Cannot unnecessarily trammel rights
of the majority
– Goal can be to attain, but not maintain,
diversity
– Cannot be indefinite in length
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Voluntary Affirmative Action Plans
Implications and Practical Tips
• To engage in voluntary affirmative
action measures, your organization
should have a written plan that:
– Analyzes and confirms a compelling interest
in diversity
– Articulates the goals (not quotas) of
program
– Discusses means of accomplishing goals;
what race-neutral alternatives were
considered; why alternatives were
unworkable; and why race-conscious
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measures are necessary
Voluntary Affirmative Action Plans
Implications and Practical Tips (cont.)
• Limit duration of plan and review plan
regularly
– Have goals been met?
– Do the race-conscious measures continue
to be the only means of achieving goals?
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Voluntary Affirmative Action Plans
Implications and Practical Tips (cont.)
• Train personnel involved in decisionmaking
– Hiring recruiters
– Decision-makers
– Search committees
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Wellness Programs
• Applicable Laws
– Affordable Care Act (ACA)
– Health Insurance Portability and
Accountability Act (HIPAA)
– Americans with Disabilities Act (ADA)
– Genetic Information Non-Discrimination Act
(GINA)
– Lawful consumable product statutes
– Laws that protect employee privacy
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Wellness Programs
• Participation-based programs pose less
risk than outcome-based initiatives
– Employers still must analyze whether they
are excluding disabled employees from
accessing benefits under the program
• Programs must be truly voluntary
• Manage employees’ health information
with care
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Examples of Diversity Initiatives
• General Mills
– Professional development
training and mentoring networks
for different protected classes
– Works with minority and womenowned suppliers
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Examples of Diversity Initiatives
• AT&T
– Scholarships and fellowships
– Leadership development programs for
recent college graduates, with 42%
women and 46% people of color
– Employee resource groups, some of
which focus on protected classes
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Examples of Diversity Initiatives
• Target
– Recruits at career fairs held by organizations
that represent different protected classes
– Diversity and inclusion business councils
which provide professional development
opportunities for employees. The councils
represent six groups: African American; Asian
American; LGBT; Hispanic; military; and
women
– Works with agencies, schools, and
government programs to hire members of the
military
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Examples of Diversity Initiatives
• Sodexo
– Uses diversity dashboards and
scorecards to measure and improve
initiatives
– Ties a percentage of annual incentives
for executives and managers to
achievement of annual diversity targets
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Risks
• Reverse discrimination lawsuits
• Note that diversity efforts at other
organizations may be based on an
affirmative action plan
• Efforts to recruit members of one
protected class may result in disparate
impact on another – e.g., veterans and
women
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How to Proceed
• Goals not quotas
• If no affirmative action plan, be sure that
your diversity initiatives are inclusive of
all employees, not just members of
protected classes
• If voluntary affirmative action plan,
reassess often and follow the tips
outlined above
• Do not exclude individuals outside
protected classes from participation in
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groups, events, etc.
Questions
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