Proceed with Caution: Voluntary Diversity Efforts Must Be Undertaken with Care to Limit Litigation Risk for Employers

This article talks about a lawsuit against a big company for using unfair business practices, and how it was settled for a lot of money. The case involved a lot of evidence and arguments from both sides, and in the end, the company had to pay a big settlement. Many companies are trying to make their workforce more diverse, especially in management positions. Some big companies like Wells Fargo, Microsoft, and Amazon are doing this voluntarily. However, some of these efforts are facing legal challenges. For example, the Florida Supreme Court rejected a policy that set diversity requirements for faculty at CLEs. Coca-Cola also faced legal issues when they announced diversity benchmarks for their outside counsel. Businesses need to be careful when promoting diversity, because they could face legal problems if they don’t do it right. Employers can take action to make their workforce more diverse for different reasons. Some do it because they have to, while others do it voluntarily. There are two main ways employers can do this: diversity initiatives and affirmative action plans. Diversity initiatives just help employers consider more diverse candidates, while affirmative action plans go a step further and allow employers to specifically favor certain groups in hiring. So, diversity initiatives broaden the candidate pool, while affirmative action plans give certain groups an advantage in hiring. Title VII of the Civil Rights Act of 1964 addresses diversity initiatives and affirmative action plans differently. Diversity initiatives are allowed to create opportunities for everyone, but affirmative action plans must meet certain requirements and be implemented in a specific way to comply with Title VII. It can be hard to tell the difference between the two. Title VII is a law that stops employers from treating people unfairly because of their race, color, religion, sex, or national origin. It helps to make sure everyone has an equal chance to get a job and be treated fairly at work. This means employers can’t use these things to make decisions about who to hire, promote, or interview. The law was made to help fix the big problem of discrimination in employment, especially for Black people. After the law was passed, employers had to change the way they hired and treated their employees to follow the law. But some of the new ways they tried to be fair could still cause problems and lead to lawsuits. In 1979, the EEOC issued guidelines to help employers create voluntary plans to promote equal employment opportunity for minorities and women. The Supreme Court also allowed these plans as long as they address past discrimination and promote diversity without unfairly treating non-diverse candidates. However, the rules are still unclear, and some employers face lawsuits over their diversity efforts. Many businesses are trying to increase diversity, but they need to be careful to follow the law. Employers need to be careful when implementing diversity initiatives and voluntary affirmative action plans because there are potential legal risks. It’s important for employers to fully understand the possible problems that could come up so they can make good decisions about how to create a diverse workforce. Lawyers should not oversell the legal protections offered by certain cases or downplay the risks of implementing these plans without following the rules. It’s important for employers to be informed so they can create a program that will stand up in court and achieve their goal of diversity in the workplace. Chrysler implemented a program that gave better financing options to Black investors for their dealerships. A white woman, Frost, sued because she was denied a dealership in favor of a Black man. The court said Chrysler used the wrong data to justify its program. Even if a company tries to make a fair plan, a court might still disagree. The process of defending the plan in court can be expensive and time-consuming. If an employer wants to create a plan that gives preference to a group that’s underrepresented, they have to follow specific rules. But it can be hard for them to admit there’s a problem in the first place. They have to acknowledge that there’s a racial imbalance in their workforce before they can make a plan. If they don’t admit it, their plan might not work. In a court case involving a casino, the court found that an affirmative action plan for hiring Black candidates was not valid because there was no evidence of past segregation in the relevant job category. Another case involving a company’s workforce initiative program showed that collecting data on racial imbalance can be used as evidence of discrimination. However, increasing efforts to recruit a diverse pool of qualified candidates is allowed under Title VII and is not considered discrimination. Employers can make changes to their hiring practices to increase diversity, but they need to be careful to avoid discriminating against any group. They can broaden the pool of candidates by changing job requirements, setting up mentoring and internship programs, and providing training on fair hiring practices. If they want to consider race or gender in their hiring decisions, they need to follow specific rules to make sure they are not discriminating against other qualified candidates. It’s important for employers to regularly evaluate their diversity efforts to make sure they are still necessary and fair. The Coca-Cola company has made a commitment to diversity and belonging, but some people think their plan goes too far. The law gives courts the power to create ways to fix discrimination, including affirmative action. Federal contractors also have to follow affirmative action rules. The law says it’s illegal to discriminate based on race or color in the workplace. A Supreme Court case in 1971 helped show that employment practices that have a negative impact on certain groups can be illegal. The government has guidelines for how employers should make hiring decisions. If someone can show they were not hired because of their race or national origin, they can ask the court to make the employer change their hiring process. If there’s evidence that a company only included a minority person in the list of job candidates, it could be a sign of discrimination. The law says it’s illegal to discriminate based on race, whether the person is white or nonwhite. The goal is to give everyone an equal chance at getting a job. It’s against the law to make decisions based on someone’s race. There are rules in place to make sure companies follow these laws. In a famous court case, the Supreme Court said it was okay for a company to have a policy that helps minorities get hired, as long as it doesn’t discriminate against other applicants. In 2009, the Court decided a case where the City of New Haven was accused of discriminating against white and Hispanic firefighters. The Court said that the city can only use intentional discrimination to fix unintentional discrimination if there is strong evidence that they will be in trouble if they don’t. Some courts have said that this decision only applies to specific situations, not to all cases of discrimination. After this decision, some companies and organizations have adopted a “Rooney Rule” to make sure they consider minority candidates for leadership positions. Discrimination is wrong no matter what the reason. It’s important to make sure everyone has a fair chance to apply for and get jobs. There are laws to protect people from discrimination, and lawyers like Julie A. Girard help employers follow those laws. The Labor and Employment Law Section wants to teach its members about duty, serving the public, and improving how the law is practiced. They also want to make sure that justice is served and the study of law keeps getting better.

Source: https://www.floridabar.org/the-florida-bar-journal/proceed-with-caution-voluntary-diversity-efforts-must-be-undertaken-with-care-to-limit-litigation-risk-for-employers/