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With a spotlight on corporate diversity efforts, most employers are keenly aware that Title VII prohibits using race and gender when making employment decisions such as hiring, promotions and terminations. There is less clarity, however, over the extent to which Title VII prohibits employers from engaging in race- or gender-conscious recruiting in order to create a more diverse applicant pool.
Although not expressly prohibited by Title VII, the issue is the subject of much debate, and the answer is less than clear. As previously discussed in these pages (Estreicher, Future of Affirmative Action in Employment Decisions, N.Y.L.J. Aug. 16, 2023), the U.S. Supreme Court’s recent decision in Students for Fair Admissions v. President and Fellows of Harvard College, 600 U.S. 181 (2023), requires careful consideration of how race-conscious recruiting and related record retention are conducted.
