So, what is the state of the law regarding diversity for private companies?
They are most likely going to be found illegal – although the current state of the law does not yet state that.
The safest legal approach is that companies should stop stating they seek to hire a diverse workforce. They should engage in sound hiring and promotion practices to hire the most qualified applicants, regardless of race or gender. Companies risk getting investigated and sued by the Government and by job applicants if they advertise or promote diversity.
That being said, there is nothing unlawful about trying to get the best applicants by “casting a wide net” and ensuring one reaches applicants from a variety of backgrounds. All efforts to engage in conversation with employees about unconscious racism or white privilege will be treated by the US Government as evidence of racism- against whites.
The precise issue is that the Trump Administration interprets Title VII of the Civil Rights Act of 1964 as prohibiting any distinctions based on race or sex in hiring or promotions. While no court has found that to be the law, we can predict the Supreme Court will agree with Trump on this point.
The Trump administration has issued executive orders that I will not analyze in detail here. But taken together they clearly indicate a new Government policy.
I will provide a brief history for context. Before 1964 companies in almost all states could legally engage in race and sex discrimination in hiring or promotions.
After the Civil Act of 1964, that changed, and a mix of government regulations and court cases interpreted Title VII to require “affirmative action” to end racism in the workforce.
Affirmative action came in two forms- quotas and marketing outreach.
Quotas were directives to hire XX number of Blacks or YY number of Whites.
Quotas have now been illegal for many years. But companies altered quotas to a multi-factor review of applicants. They used race and sometimes gender as a factor in hiring – simply not the sole factor. That has been true for decades, and how human resource professionals have been taught.
But there has been a movement back toward implicit adoption of quotas through the DEI movement.
DEI goals have recently been used by companies to evaluate manager hiring decisions to determine if a Workforce is diverse. That approach has become more common since the widespread popularity of the structural racism discussions and their adoption by the human resources establishment.
This theory argued as follows:
- America is fundamentally racist, and the norm is racist hiring.
- Only a race conscious approach in which people confront our unconscious racism and privilege can improve our institution and societies.
This seemed to open the door for a return to the hiring quotas of the 1970s.
Indeed, some Government regulations such as the executive order requiring affirmative action for Government contractors seemed to implicitly accept such an approach.
That executive order which dates back to the Lyndon Johnson Administration has now been abrogated. Interestingly neither Trump in his first term nor Ronald Reagan nor any of the Bush administrations had taken this step before.
The new Trump executive orders do not come out of the blue. They follow logically from the movement of the courts to stop affirmative action in education.
The clearest description of affirmative action legality or illegality came in cases concerning college admissions. From the 1970’s until last year, while denying they engaged in quotas, colleges – public and private – promoted diversity and spent much money to encourage recruitment from African Americans and Hispanics. When comparing applicants, colleges routinely looked to the race of the applicant and while they claimed they were not using race as THE factor to allow someone in, they openly used race as one admissions factor.
The US Supreme Court ruled affirmative action in college admissions to be unlawful under the 14th Amendment in 2023 with the Harvard College case. The Court held that making efforts to let in more Blacks and Hispanics hurt Asian Americans and White Americans, and that was illegal.
The reasoning of that opinion clearly applies to private sector employment decisions — although that is not YET what the courts state. I can predict with confidence the Supreme Court will ultimately abolish affirmative action in the private sector.
Thus far, only a few cases have been brought recently, however attempting to challenge private sector affirmative action using the Harvard decision as precedent.
We can now expect the Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) to bring many such cases.
Companies seeking to avoid legal problems should adopt race and gender-neutral hiring and promotion practices.