Promoting diversity in the workforce has become a key focus for many employers. Organizations have increasingly recognized the many benefits of employing a workforce with diverse backgrounds, perspectives, and experiences, and, more specifically, employees who belong to a variety of different characteristics protected by federal and state employment laws, including race, gender/sexual orientation, age, religion, and disability, among others. The challenge for employers, however, is how to promote diversity in the workforce without violating the federal, state, and local anti-discrimination laws that prohibit employers from making any employment decision, including hiring decisions, based on a legally protected trait. This article provides some best practice tips designed to help your organization navigate this complex area of the law.
- Thorough Job Posting Procedures. Employers should post job openings internally and externally. An employer should avoid the temptation to offer an open position only to its existing workforce or to only a single, current employee.
- Diverse Candidate Pools. Employers should ensure that the organization is recruiting from diverse candidate pools. If candidates with a certain protected characteristic (e.g., race, gender, age) are underrepresented in an employer's hiring pools, the employer should consider broadening recruiting strategies to attract more diverse candidates. Such efforts may include, for example, advertising for a position using additional platforms or reaching out to local organizations that can help to reach a broader target audience.
- Diverse Interviewers. Employers should take steps to include diverse hiring managers and interviewers during the hiring process.
- Training on the Dos and Don'ts of Hiring. Employers should train hiring managers and interviewers on what can and cannot be considered when making hiring decisions, as well as on what questions can and cannot be asked of candidates during the hiring process. Employers are legally prohibited from hiring a candidate, or making any other employment-related decision, based on that candidate's race, gender, age, or any other protected characteristic. Employers should select the best-qualified candidate for the job.
- Robust Hiring Process. Employers should consider implementing multiple rounds of interviews for an open position, during which hiring managers and interviewers complete a standardized form/questionnaire to evaluate the candidate. This will allow the organization to gradually narrow the pool of candidates with the input of multiple decision makers.
- Review Job Application Form. An organization's job application should not request information about candidates' protected characteristics or seek information that could result in the disclosure of a protected characteristic. (Note, many jurisdictions have ban-the-box laws that prohibit inquiries about a candidate's prior criminal or arrest history.) Employers should be mindful of laws related to the collection of DEI data. As a best practice, such data generally should be collected on an anonymized basis only after a candidate has accepted an offer of employment.
- Review Job Postings and Marketing Materials. Job postings and marketing materials should not include a suggestion that the organization is seeking a candidate who belongs to any particular protected characteristic. That said, a carefully drafted diversity statement may be an effective tool for advertising an organization's commitment to hiring candidates from all manner of backgrounds.
- Avoid Arbitrary Quotas or Diversity Metrics. Except in certain limited circumstances, employers should avoid making hiring decisions using any numerical quota, metric, or rubric based on any legally protected characteristic.
Employers who have questions about how to legally promote diversity, equity, and inclusion in their hiring practices, or about any other issues raised in this article, may contact the authors or any other attorney in Venable's Labor and Employment Group.