“Is it legal to consider race and gender in hiring?”

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You might also hear, “Isn’t this reverse sexism/racism/-ism?”

In some cases with these kinds of comments, people genuinely want to know what’s allowed and what’s not. But they may also be trying to get around any action the company is proposing, or they might be on the defensive. They may be afraid that their place in the company is at risk.

The Basics

In the U.S., it is illegal to discriminate against an employee on account of certain immutable traits such as their race, color, religion, sex, or age.

The Equal Employment Opportunity Commission, a U.S. federal agency, encourages employers to take steps to address barriers to equality in employment. In its Compliance Manual and Guidelines on Affirmative Action, the EEOC specifically notes that employers may engage in efforts “to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity.”* This may even go as far as establishing quotas for URGs, but employers should be aware that courts may see quotas as evidence of illegal discrimination in a diversity program. Other considerations include “whether the plan is flexible enough so that each candidate competes against all other qualified candidates, whether the plan unnecessarily trammels the interests of third parties, and whether the action is temporary, e.g., not designed to continue after the plan’s goal has been met.”*

For employers seeking to improve diversity, the law specifically carves out at least limited protection to correct manifest imbalances.

Definition Manifest imbalance is a state of affairs in which a protected class is drastically underrepresented in a particular workplace compared to its representation in the employable workforce.

dangerAlways remember to consult an attorney about these sorts of legal questions. Not only are there various restrictions—for example, efforts cannot “trammel on the rights” of members of the majority group*—but this is a developing area of law.*

Going Deeper

It’s possible that this question isn’t asked in earnest, but as a defense mechanism or even a mocking of D&I proposals.

It is a testament to the power of normalization that we do not question the legality of hiring another white man* onto an already predominantly white male team in a predominantly white male industry—we have merely accepted that what exists today is nothing out of the ordinary. However, it is not out of the ordinary to be questioned about the legality of broadening our horizons to consider hiring URGs—this is where you hear folks throw around terms like “reverse-sexism” or “reverse-racism.” But if we take a step back and look at who is and who isn’t on our teams, anyone would be hard pressed to conclude that it is men who are being discriminated against in our industry.

“Our next hire must be diverse.”

When you hear someone say, “Our next hire must be diverse” or “We need to hire five more women and two people of color to have more diversity,” it’s usually said with good intentions. People are trying to be mindful of diversity debt and are determined to not make the problem worse. But this way of looking at D&I may do more harm than good.

The Basics

Talented people of all different backgrounds want to be given a fair opportunity to succeed based on their skills and aptitude. Demanding that your next hire must be a member of one URG or another can lead them to be referred to (or thought of) as the “diversity candidate.”

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