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As diversity, equity, inclusion, and access (DEI&A) initiatives become more commonplace, the temptation to institute diversity quotas can become a well-meaning road to a problematic organizational structure. While giants like Wells Fargo and Ralph Lauren joined a dozen companies publicly announcing a dedicated effort to increase the percentage of minority talent in higher positions this year, the move was met with skepticism at the time, with Frank Dobbin, professor of social sciences at Harvard University, reiterating his earlier analysis of their failings

Commitments to racial quotas can steer initiatives toward hitting marks in their workforce data, while overlooking the goal of a real and lasting company culture which fosters and develops diversity among team members. In the long term, relying on fixed racial quotas can not only sabotage companies’ broader focus on DEI&A, but it can also run afoul of anti-discrimination laws. Per Title VII of the Civil Right Act:

“… as amended, protects employees and job applicants from employment discrimination based on race, color, religion, sex, and national origin. Title VII protection covers the full spectrum of employment decisions, including recruitment, selections, terminations, and other decisions concerning terms and conditions of employment.”

For example, if racial quotas are considered to favor certain minority candidates over majority candidates in terms of recruitment, diversity initiatives involving quotas can violate Title VII under the precedent set in McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976), and more recently, as reported in the Wall Street Journal’s coverage of the verdict in Ricci v. DeStefano, which states, among other things, that “[The terms of Title VII] are not limited to discrimination against members of any particular race” and upholds the reference to “racial discrimination in private employment against white persons upon the same standards as racial discrimination against nonwhites.” 

Fortunately, the EEOC (Equal Employment Opportunity Commission) provides some guidance regarding what distinguishes an Affirmative Action Goal from a Racial Quota, and understanding that distinction can make all the difference when launching efforts to build a more inclusive and diverse company. When promoting DEI&A efforts, an important resource for understanding what does and does not constitute a Title VII violation are the EEOC guidelines for an Affirmative Action Plan (AAP), found in guideline 41 CFR 60-2.12(e). (For reference, a sample AAP (Affirmative Action Plan) can be viewed here.) The EEOC outlines an Affirmative Action Plan as such: 

(1) the plan must be designed to eliminate a conspicuous racial imbalance in traditionally segregated job categories;

(2) the plan may not trammel the interests of the non-minority employees; and

(3) the plan is temporary in nature, intended to eliminate a manifest imbalance and not to maintain balance.

For employers, familiarizing HR staff with these tenets is essential, and one should consult the EEOC’s Compliance Manual for specifics. Of course, an employer’s first step in developing an AAP is to review their current workforces’ respective data: an internal audit of workforce data is the best way to proactively identify a problem and to identify a starting place for increasing workplace diversity and inclusion.