In-House Counsel Need to Ensure Diversity & Inclusion Program Opens Up Applicant Pool
"GCs are also often caught between legal views of 'affirmative action law and compliance,' that are much different than the business, operational or human resource approach for fostering a diverse and inclusive workplace," Kimya Johnson, senior counsel at Ogletree, Deakins, Nash, Smoak & Stewart in Philadephia, told Corporate Counsel.
July 06, 2020 at 06:03 PM
3 minute read
The original version of this story was published on Corporate Counsel
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It may be popular for companies to announce that they are going to hire a certain percentage of women and minorities, however, courts can view this as affirmative action and may weigh favorably in a reverse discrimination suit. Attorneys said in-house counsel should do all they can to make sure their companies' diversity and inclusion programs open up the applicant pool rather than limit it to one group.
Esther Lander, a partner at Akin, Gump, Strauss, Hauer & Feld in Washington, D.C., said some of the confusion over affirmative action and diversity and inclusion initiatives comes from a federal mandate that requires federal contractors to develop an affirmative action plan.
"GCs are also often caught between legal views of affirmative action law and compliance that are much different than the business, operational or human resource approach for fostering a diverse and inclusive workplace," Kimya Johnson, senior counsel at Ogletree, Deakins, Nash, Smoak & Stewart in Philadephia, said in an email to Corporate Counsel.
Under Title VII of the Civil Rights Act, private companies may also engage in a voluntary affirmative action plan, but the plan must be aimed to eliminate a manifest imbalance in a segregated job. Where companies can find themselves in trouble is by announcing specific goals in hiring minority and women candidates. Lander explained that traditionally a diversity and inclusion initiative should be used to expand the hiring pool, rather than exclude a specific race or gender.
"Unless a company conducts what is known as an 'underutilization' analysis to determine the availability of qualified minorities and women within a reasonable recruiting area, they should make clear that these are purely aspirational goals," Lander said.
Christine Hendrickson, a partner at Seyfarth Shaw in Chicago, said the work companies are doing to be more inclusive is some of their most important work and that they want to be able to comply with the law. However, there is more legwork they must do than to make announcements about how many women and minorities they will hire by a certain date.
"One of the things that employers may not be aware of is that you need to establish the basis for undertaking all of these fantastic D&I efforts," Hendrickson said. "This is some of the most important work that we do. You should take a pause to make sure you have complied with all of the legal standards."
She said companies should begin their efforts by conducting a statistical analysis to identify where their gaps are. A statistical analysis of the workforce will help identify where the gaps are to in-house counsel can see how to widen the applicant pool.
Another way to open up the applicant pool is to recruit from minority colleges and affinity organizations.
"Affinity groups are not governed by affirmative action laws or compliance mechanisms. Affinity groups are a "best practice" resource under many D&I initiatives," Johnson said.
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