We aren’t subject to an affirmative action plan, but I’m concerned that our workforce isn’t very diverse and that we may be losing good employees as a result. What are our legal obligations with diversity, and how can we address diversity at our company? — Abby B., HR Manager in Bakersfield
Any employer that is concerned with whether its workforce is diverse enough has won at least half the battle. This concern reflects the organization’s awareness of the positive effects of a diverse workforce—for example, higher employee retention rates and increased productivity—which have been widely studied and reported on in recent years.
Does the law require an employer to have a diverse workforce? No. California’s Fair Employment and Housing Act, which applies to employers with five or more employees, prohibits the intentional discrimination against an individual in hiring or other employment actions because of his or her protected characteristic, such as race, national origin, or gender
Similarly, the federal law counterpart, the Title VII antibias law, prohibits such actions by employers with 15 or more employees. Employers must also take steps to ensure that any neutral policies or practices—such as requiring applicants for certain jobs to hold college degrees—do not have a disproportionate impact on any groups of employees because of protected class status. Aside from these prohibitions, the employment laws do not require employers to take additional steps toward diversity.
To some extent, racial and gender diversity challenges stem from a lack of diverse candidates in the hiring pool who graduate from college or obtain advanced degrees in certain fields, particularly science and math. Some employers partner with elementary, middle, and high schools to generate interest in these fields and provide scholarships for disadvantaged students. These efforts tend to have vast payoffs for companies as the current workforce sees the value placed on diversity.
“Diversity,” as a term, has come to mean various things. At times, it is used to refer to the racial and gender make-up of an organization, which has led some employers to focus on diversity only in the hiring process. However, employers should ensure that once aboard, employees truly have equal opportunities for development and advancement. One clear clue that they do not is that employees of a certain race, gender, or other characteristic are leaving the company in disproportionate numbers. If this occurs in your organization, it is time to examine the cause and take appropriate steps before the situation develops into a lawsuit.
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Beyond race and ethnicity, there are many other types of diversity. For example, employees are likely to have varying levels of education and attendance at different schools, and varied work experiences, socioeconomic backgrounds, and income levels. Moreover, within an organization, there are hierarchies and status levels associated with job functions.
Valuing diversity in an organization means valuing the various perspectives and experiences that individuals have, focusing on all aspects of our differences, and finding ways to maximize the benefits of these differences. Accomplishing this is a huge undertaking because everyone has biases, even if they don’t consciously realize it. Some biases are positive—for example, having a bias against foods that make us ill. Individuals tend to have other biases, such as an affinity toward another person who graduated from the same school or grew up in the same area. Some people harbor biases regarding personal appearance, such as tattoos, hair length, or clothing choices. Some of these biases are actually rooted in stereotypes that do indicate racial or gender prejudices.
Ensuring that inappropriate—and even unlawful—biases are not playing a part in employment decisions involves personal awareness of these hidden biases. Studies show that people can be consciously committed to egalitarianism and deliberately strive to behave without prejudice, yet still possess hidden negative prejudices or stereotypes.
Psychologists at Harvard University, the University of Virginia, and the University of Washington created “Project Implicit” to develop Hidden Bias Tests—called Implicit Association Tests, or IATs—to measure unconscious bias. Some organizations have found it useful to have managers use the Project Implicit website tool as a starting point for raising awareness.
Mary L. Topliff, Esq., is principal of the Law Offices of Mary L. Topliff in San Francisco, specializing in employment law counseling, training, and compliance.