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How to Deal

Making a hiring decision based on race or age is illegal, even if it's done to make a work environment more diverse

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By Lily Garcia
Special to The Washington Post
Thursday, January 7, 2010; 12:00 AM

Hi, Lily. I work for a public organization. I love my job and my boss and the CEO. I have also served on several hiring committees. I have been told point blank by various levels of leadership that we have to hire non-white candidates. I was also told that we have to hire somebody younger than 42. Aren't these directives illegal? The last candidate that we hired was white and 42+ years old. I agree that we want a diverse workforce. How do we achieve that without engaging in illegal discrimination? Thank you.

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It is a violation of Title VII of the Civil Rights Act of 1964 to make hiring decisions based upon race. Under the Age Discrimination in Employment Act, meanwhile, it is illegal to discriminate against job applicants who are age 40 or older. Many state and local laws contain similar prohibitions.

One notable exception to these rules is the bona fide occupational qualification (or BFOQ). There may be circumstances under which the legitimate requirements of a job have the effect of excluding older applicants. Physically demanding jobs that require a certain level of strength or stamina are one example. Employers may also sometimes explicitly seek or exclude candidates based on such criteria as race. For instance, a theater company may have a casting call that is open only to black males based upon the role the incumbent will be hired to play. To protect an employer from liability for discrimination, BFOQs must be a matter of business necessity and not mere pretext.

A general desire for race or age diversity in the workplace does not constitute a BFOQ. Unless your employer has a specific defensible business need to give preference in the hiring process to people who are non-white and/or under a certain age, the practice is probably illegal.

The value of promoting workplace diversity should by now be uncontroversial. It makes good business sense to cultivate a workforce that reflects and, therefore, understands your target market. Plus, diverse groups consistently surpass homogenous ones in their capacity to problem-solve efficiently and creatively. Most obviously, it is morally right to adopt hiring practices that give all people a fair chance based upon their professional qualifications rather than irrelevant personal characteristics.

What your employer seeks to achieve is both smart and good. The problem lies in the execution. In the myopic pursuit of one or two specific types of diversity, your organization will tend to exclude many others and, as you have experienced, delegitimize a noble effort.

But what, exactly, constitutes diversity? Take a street poll and you will find that many people view diversity as a question of race, or perhaps gender. Yet, when it comes to the recruitment objectives of an enlightened employer, a narrow view of diversity is not realistic or helpful. I prefer the definition articulated by President Barack Obama in his Notre Dame speech: "diversity of thought, diversity of culture, and diversity of belief." We each comprise a multitude of experiences and life choices that, together with such overt characteristics as our skin tone and gender, define who we are and how we are perceived. Yet, we each remain complex in our potential contributions to an enterprise.

The most successful diversity initiatives focus not on hiring people who fit a particular profile, but rather on building a pipeline of diverse applicants while strengthening the employee retention rate. Building a pipeline involves reaching out beyond traditional or mainstream recruitment channels to communities that might not normally hear about your available jobs. You may choose to attend lesser known recruitment fairs in smaller markets, for example, or advertise your jobs through the minority media. Some organizations even establish mentoring, internship and other educational programs that introduce diverse youth to their profession or industry long before they might be eligible for actual employment. If you have a strong diverse pipeline, then you will, in the normal course of selecting the most highly qualified applicants, end up with employees of diverse backgrounds.

Then the question becomes how to retain the talent you have worked so hard to attract. Some organizations do this with employee development programs, support networks and benefit programs that recognize and honor the diversity of their workforce. You may establish affinity groups that offer networking resources to employees with particular concerns and interests (e.g., single parents and employees coping with a disability). You may pair new hires with more seasoned workers who can help to orient them to the organization and plan for advancement. You may audit the effectiveness of your training, succession planning and other employee development programs to ensure that they are effective and inclusive.

As it turns out, the employment practices that tend to attract and retain diverse employees are also those which keep your workforce happy and productive in general. Rather than engaging in the counterproductive exercise of targeting people based upon their age or race, your organization would be best served by adopting a recruitment strategy focused on capturing the interest of people beyond the mainstream while ensuring that your workplace is welcoming and supportive of all.

Lily Garcia has offered employment law and human resources advice to companies of all sizes for more than 10 years. To submit a question, e-mail HRadvice@washingtonpost.com. We reserve the right to edit submitted questions for length and clarity and cannot guarantee that all questions will be answered.



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