Regardless of whether your workplace has a formal diversity policy, it’s often hard to determine how and when race can be used as a criterion for hiring decisions. Two major new U.S. Supreme Court decisions offer some guidance. Although the cases deal with university admissions rather than workplace hiring, the court set out standards for using race-based criteria that are useful for employers—both public and private.
Diversity Important but Individualized Review Necessary
In the first case, the Supreme Court struck down a University of Michigan admissions policy that awarded a fixed number of points to minority applicants. The court said diversity can constitute a compelling state interest but the university’s policy used measures that weren’t narrow enough to achieve this goal. That’s because applicants were not reviewed individually but rather given an automatic edge in the admissions process.
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Individualized Policy Appropriate
The second case dealt with admissions at the University of Michigan law school. The court again emphasized the importance of a diverse student body. “[M]ajor American businesses,” the court said, “have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.”Unlike the undergrad admissions practice, the law school admissions process was directly targeted to achieve this goal. Instead of setting illegal quotas, the court said, the law school engaged in an individualized “review of each applicant’s file.” This process was used for applicants of all races, not just minority applicants. The court found the admission review practice acceptable but noted the program could not continue indefinitely because “race-conscious programs must have reasonable durational limits.”
Look at Individuals, Not Groups
Because Title VII prohibits public and private employers from discriminating based on race, striking a balance between diversity and discrimination can be tricky. Deciding that you want a certain number or percentage of your workers to be a specific race or gender can get you in trouble if it takes precedence over job qualifications. For this reason, avoid quotas. Decisions based on race need to include a review specific to each individual. You can’t rely on an across-the-board policy ap- plied to all applicants of color. Look at applicants as individuals and race as one factor of many. And remember to reevaluate your diversity/affirmative action policy often to make sure it’s still necessary and still achieving your intended goals.