Alert – Employer Diversity Efforts Remain Legal After the Supreme Court Bans Affirmative Action in Higher Education
The Equal Employment Opportunity Commission (EEOC) recently reminded employers that diversity and inclusion efforts remain lawful. In response to the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina that struck down race-based admissions policies at Harvard and the University of North Carolina, the Chair of the U.S. Equal Employment Opportunity Commission (EEOC) reiterated employers can still lawfully implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace. Per the statement, diversity helps companies attract talent, sparks innovation, improves employee satisfaction, and permits companies to better serve their customers. Stated another way, the EEOC’s message reinforced that race discrimination remains unlawful.
In line with the practices endorsed by the EEOC to prevent race discrimination, employers may lawfully engage in these practices as follows:
• recruit, hire, and promote with EEO principles in mind, by implementing practices designed to widen and diversify the pool of candidates considered for all job openings,
• analyze the duties, functions, and competencies relevant to jobs and create objective, job-related qualification standards based on them,
• establish neutral and objective criteria to avoid subjective employment decisions based on personal stereotypes or hidden biases,
• promote an inclusive culture in the workplace by fostering an environment of professionalism and respect for personal differences, and
• ensure selection criteria do not disproportionately exclude certain groups unless the criteria are valid predictors of successful job performance and meet the employer’s business needs. For example, if educational requirements disproportionately exclude certain minority or racial groups, they may be illegal if not important for job performance or business needs.
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