Diversity & inclusion: Make sure your good intentions are legal.

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Title VII of the federal Civil Rights Act forbids employers from basing employment decisions on an individual's race, color, religion, sex or national origin. But the U.S. Supreme Court has twice upheld an employer's right to voluntarily adopt race- and gender-conscious employment policies that the employer thinks will remedy inherent workforce imbalances.

In some cases, however, lower courts have struck down such affirmative action policies if they trampled on the rights of male and nonminority employees. Such plans have lost because Title VII doesn't say that diversity supersedes discrimination based on protected characteristics (race, sex, etc.).

Selecting a candidate simply because he or she belongs to a race you would like better represented in your company may mean "reverse discrimination." The biggest mistake employers make is to adopt casual and unwritten affirmative action practices without considering whether these practices are lawful.

Diversity: Your responsibility If your organization has a diversity initiative, who is responsible for leading it? HR 59% CEO/president 25% Senior management 21% Diversity commitee 11% COO 6% Chief diversity officer 5% Source: SHRM Diversity & Inclusion Survey Note: Table made from bar graph. Diversity policy process

Employers that want to correct employment imbalances among women or minority employees should create specific written policies consistent with Supreme Court rulings. Here's how to create a good policy:

  1. Determine whether actual underrepresentation exists. The only legitimate reason for race- or gender-conscious employment decisions is to remedy "manifest imbalances in traditionally segregated job categories."

    Before adopting an affirmative action plan, see if there is an imbalance. For example, compare the percentage of qualified and available female or minority candidates with the percentage of women and minorities in each department.

  2. Determine whether the positions at issue are in traditionally segregated job categories. In addition to statistically establishing a disparity, the plan should take into account the affirmative steps necessary to address impediments to employment and advancement.

    If an employer determines affirmative action is desirable and necessary and that a manifest imbalance exists, the policy should state the conclusion that mere prohibition of discrimination is insufficient to remedy the effects of past practices. To pass muster, the policy must be remedial and...

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