Legal Trends

Without diversity from top to bottom, good fit may look like unlawful bias.

By By Jonathan A. Segal Nov 1, 2006

HR Magazine, November 2006

(Second in a two-part series)
Often, the person who seems on paper to be the best candidate for a top-level job isn’t even a contender by the time the interview ends. Sometimes you just know from the interviewee’s tone and demeanor that the person would not be a good fit in your organization, so you go with your gut instinct.

Although it’s a common practice to conclude that a candidate would not be a “good fit,” it’s not a fail-safe legal defense under Title VII and other antidiscrimination laws. And the less diverse an organization is, the more a good-fit rationale may seem like a pretext for selecting candidates from the same racial or cultural backgrounds.

The good-fit rationale sounds a little too much like a bias singled out by the Equal Employment Opportunity Commission (EEOC) earlier this year in its updated Compliance Manual. In a section on race and color discrimination (see the first part of this series in the October 2006 issue of HR Magazine), the agency reminded employers of the dangers of hiring based on what it refers to as a “like-me bias.”

Citing its own prior Best Practices Task Force Report, the EEOC states “it is an axiom of human nature that people often like to associate with other people who are like themselves. This enhances a comfort level in working relationships.” The agency went on to note that “such ‘like me’ bias may be conscious or unconscious. Nevertheless, the ‘like me’ syndrome can lead to a tendency to employ and work with people like oneself,” which may violate Title VII, even if an organization is not making a conscious choice to exclude applicants based on their race or other impermissible factors. And the agency specifically gave, as an example of like-me bias, the scenario of someone saying that an applicant was not a good fit.

If an organization has diversity from top to bottom, rejecting applicants because they aren’t a good fit may not sound anything like the EEOC’s so-called like-me bias. But to the extent there isn’t adequate diversity, particularly at the top, the like-me bias can perpetuate the absence of diversity among upper-level management and executives for unlawful reasons—including race.

Because like-me bias is, as the EEOC concedes, human nature, the potential for systemic discrimination based on it exists in any organization in which there are, well, humans. The key to avoiding such unconscious systemic bias is to develop consciously systemic checks to prevent and detect such bias without inadvertently creating the grounds for a claim of reverse discrimination.

Diversity and Uniformity

As a first step, employers can minimize the likelihood that there will be like-me bias by having a diverse interview team select candidates. If a diverse team does the selecting, it is less likely that someone will be able to argue credibly that the team selected someone “just like them.”

Employers can further minimize the likelihood that there will be like-me bias by having a structured interview process in which all applicants are asked, at least initially, the same job-related questions. Without uniform questions, different questions might be asked based on the interviewer’s comfort level. If the interviewer is less comfortable with someone of a different race, the candidate would not get a fair shot in terms of the questions asked of him or her.

The hiring criteria also should be uniform. As the Compliance Manual makes clear, the application of different criteria (or giving different weight to the same criteria) for the same position but at different times may give rise to an inference of discrimination.

It should go without saying—but unfortunately needs to be said—that the absence of specific criteria (as opposed to different criteria or different weight to the same criteria) creates the greatest risk of all relative to unconscious (or conscious) systemic bias. Yet senior leaders sometimes balk at developing and using specific criteria that they believe may unnecessarily restrict their flexibility and/or are unnecessary because of their innate ability to assess talent without criteria. When senior leaders balk at specific criteria, HR needs to balk back.

Further, most senior-level positions include some subjective requirements with regard to behavioral competencies such as strong interpersonal skills, ability to make quick decisions on imperfect information and flexibility.

Contrary to admonitions that all criteria must be objective, subjective factors are not illegal per se. However, a person evaluating a candidate based on subjective factors should do so carefully because subjective factors “are more susceptible of abuse and more likely to mask pretext,” as the EEOC notes in its Compliance Manual. Indeed, the use of subjective factors is more likely to result in the reality of, or at least the appearance of, systemic bias.

To measure subjective factors, it is recommended that employers use situational or behavioral questions. As we all know, situational questions get at how candidates have handled specific situations in the past, and behavioral questions help determine how candidates might handle hypothetical situations in the future.

Both situational and behavioral questions provide a helpful foundation for making decisions on the “non-EEO” aspects of diversity, as discussed below.

Training For Decision-Making

The general rule is easy: Employers cannot consider race or color (or any other protected status) in the decision-making process. The application of the general rule is far more complicated.

Managers need to receive training as to how race and color can insidiously infuse themselves into the decision-making process. The training as it relates to race and color should focus on both racial stereotyping and like-me bias.

With racial stereotyping, the message should be clear and unambiguous that such bias is not only illegal but also morally wrong and inconsistent with the organization’s values. There is no defense to the indefensible.

With like-me bias, the message is a bit different. As previously noted, even the EEOC acknowledges that like-me bias is a human tendency as opposed to a moral wrong.

Managers need to understand that even if it is a human tendency, unconscious like-me bias may be illegal (if it relates to EEO status), is counterproductive (you already have you and don’t need another one of you) and is substantially avoidable (with conscious knowledge of it).

As noted earlier, diverse teams may help to minimize the potential for like-me bias. Another way to minimize the potential is to train all managers to weigh favorably differences in experience, perspective, style, contacts, etc.

For example, you may want to encourage managers to ask themselves: “What does the candidate bring to the table in terms of experience, perspective, experience and/or contacts which we do not already have?” The answer may show that the candidate who is most like the hiring manager may be the least desirable (regardless of race, color or other protected status).

Of course, most decision-makers do not consciously think or expressly state, “He reminds me of me; I want to hire him.” Instead, as the EEOC correctly notes in its examples in its Compliance Manual, we are more likely to hear that the successful candidate “seemed to be a better fit” or “I’m [more] comfortable with him” (15-VI-B.1. Example 12).

Cultural fit and comfort level are red flags for the EEOC and private plaintiffs. However, this does not mean that employers never can legitimately consider cultural fit or personal comfort level, since they do not automatically equate to unlawful bias. It depends on the basis for the conclusion.

For example, assume a manager believes that someone will not be a good fit within an organization’s culture. The training should encourage the manager to drill down as to why. What did the candidate say or do that has created the concern? What skill or experience is he or she lacking, and why does this relate to the job for which he or she applied? To the extent that the manager can articulate legitimate, nondiscriminatory reasons supported by specific examples, the manager should focus on the specific examples as opposed to the problematic “cultural fit” conclusion.

However, in providing specific examples, managers should be careful of qualifiers that are neutral on their face but that may reflect racial stereotyping. For example, saying that a black applicant is “arrogant” may suggest racial bias just as “too aggressive” may suggest gender bias or “rigid” may reflect age bias.

Again, this risk can be minimized if management drills down further. What did the candidate do that was arrogant? If it’s just a feeling, it may be a racist feeling, and the conclusion should be reconsidered.

On the other hand, if there are specific problematic behaviors (“He told me my questions were the wrong questions”), the conclusion may be legitimate, and the manager should focus on the specific behaviors as opposed to putting a label on them.

Some employers who are deeply committed to diversity go a step further and give race a “plus” in decision-making, particularly where there is an opportunity to increase diversity at the top. From a practical standpoint, it would seem that one of the best ways to counter unconscious systemic bias is to incorporate a conscious systemic plus for those who are more likely to be the victims of such bias. Such efforts probably run afoul of the law, however, and managers need to receive training on how far they can go, as discussed below.

Reverse Discrimination

By way of background, the U.S. Supreme Court has held that employers may consider race as part of a voluntary affirmative action plan if the plan has a remedial purpose.

For nongovernmental employers, there are generally two ways in which a plan can have a remedial purpose: to remedy prior discrimination engaged in by the employer, or to undo a “manifest imbalance” in “traditionally segregated job categories” as demonstrated by statistical evidence (United Steelworkers of America v. Weber, 443 U.S. 193 (1979) (voluntary affirmative action in a case involving race); Johnson v. Transportation Agency, 480 U.S. 616 (1987) (affirming and explaining Weber in a case involving gender)).

For governmental employers, the Constitution imposes additional restrictions. Voluntary remedial action may be justified generally only to remedy the employer’s prior discrimination (Wygant v. Jackson Board of Education, 488 U.S. 469 (1989)).

The issue that the Supreme Court has not yet resolved is whether and when an employer may give race a “plus” in the absence of a remedial purpose. However, the 3rd Circuit has addressed this issue directly in Taxman v. Board of Education of the Township of Piscataway (91 F.3d 1547 (3d Cir. 1996)).

There, the employer school district had an affirmative action plan. Under this plan, white teachers were laid off ahead of minority teachers even though their qualifications were equal.

Since black teachers were not underrepresented, the plan did not have a remedial purpose. Rather, the plan served what the court acknowledged was the laudable goal of having a culturally diverse workforce.

But while the court found the employer’s goal laudable, it still found the plan unlawful. More specifically, the appellate court held that “there is no congressional recognition of diversity as a Title VII objective requiring accommodation.”

Taxman stands for the general proposition that an employer cannot justify considering race, gender or any other factors protected by Title VII in decision-making under the general rubric of increasing diversity. Rather, an employer can consider Title VII factors in decision-making only as part of a remedial effort for its own past discrimination or the effects of past discrimination (manifest imbalance). Taxman subsequently was applied to hiring decisions in Schurr v. Resorts International Hotel Inc. (196 F.3d 486 (3d Cir. 1999)).

To date, no other appellate court has directly ruled on the Taxman issue under Title VII. However, other circuits have applied a Taxman-like analysis in assessing whether a public employer may give race a plus under the federal constitution. To quote the 5th Circuit: “Diversity programs, no matter how well-meaning, are not constitutionally permissible absent a specific showing of prior discrimination” by the public employer (Messer v. Meno, 130 F.3d 130 (5th Cir. 1997)).

It is difficult to predict what the Supreme Court will do if it addresses this issue. However, we must predict when assessing legal exposure. The swing vote on affirmative action was Associate Justice Sandra Day O’Connor, who retired from the court last January. Taking her place on the court is Associate Justice Samuel A. Alito Jr., whose record as an appellate judge is more conservative than was Justice O’Connor’s record on the Supreme Court.

Accordingly, it seems likely that the Supreme Court, based on its current composition, would adopt the Taxman analysis if the issue were before it. Pending resolution by the Supreme Court, it would appear that the EEOC already has adopted Taxman as its enforcement position. More specifically, the EEOC cites Taxman in its Compliance Manual in support of the caution that employers must implement their diversity programs “to avoid the potential for running afoul of the law.”

The bottom line is that employers probably cannot combat unconscious systemic bias against racial groups by consciously giving them a “plus” in the selection process (in the absence of a remedial purpose).

EEO-Neutral Factors

What employers most probably can do is give weight to certain factors that may correlate with EEO diversity but that are EEO-neutral, such as diversity in experience, style, perspective and contacts. Indeed, focusing on diversity as it relates to these areas aligns the decision-making process with the primary business driver for diversity programs—ensuring a diverse workforce that can generate diverse products and services to meet the needs of an increasingly diverse customer base.

For example, assume an employer is looking to hire a senior recruiter to be in charge of talent acquisition. One of the responsibilities of the successful candidate will be to increase the diversity of the applicant pool.

The employer could give a “plus” to any applicant who could demonstrate that he or she has substantial contacts within diverse racial communities. To the extent a candidate has stronger contacts in diverse racial communities, an employer could favor that candidate, as long as the employer assesses such contacts without regard to the race of the candidate. In other words, if a white candidate has better contacts in the black community than a black candidate, the white candidate is more qualified with regard to that criterion.

Another example: Assume an employer wishes to hire a new labor relations manager. The problem with the former manager was that she was seen as detached and academic. When developing the job description for the replacement, the employer may wish to require (or at least prefer) applicants who have blue-collar experience in addition to more-concrete academic credentials. Looking for blue-collar experience does not violate Title VII as long as the only color the employer considers is blue. And it may increase the racial and ethnic diversity of the pool of finalists.

Explaining how to achieve greater diversity without impermissibly engaging in unlawful discrimination is a critical part of the recommended management training. The key is to focus on the non-EEO aspects of diversity that may (but do not necessarily) correlate with EEO diversity.

It is important that the training make clear that focusing on non-EEO aspects of diversity cannot be a pretext for selecting candidates based on the EEO aspects of diversity. For legal and business reasons, employers must evaluate non-EEO aspects of diversity without regard to the EEO aspects of diversity.

HR Review

At least with regard to senior positions, HR should play an advisory and/or oversight role in the decision-making process. In particular, HR can look for and take corrective action with regard to any conduct that would be inconsistent with the guidelines for decision-making set forth above as communicated in management training.

For example, if a manager expresses a lack of comfort with a candidate of a different racial group, this provides HR with an opportunity to have a dialogue with the manager about the basis for the discomfort. If the discomfort is for legitimate reasons, the manager’s expression can be reframed appropriately. ›

If the manager’s discomfort seems like a red flag, HR can encourage and/or require (depending on its authority) the manager to revisit/rethink the issue. By playing this role, HR limits the likelihood that potential individual bias may result in systemic discrimination.

In determining whether racial bias exists, the EEOC states in the Compliance Manual that one factor is how the “comparators” have been treated. Accordingly, before going into any selection decision regarding a senior employee, HR may want to review the selection track records of the hiring managers.

If a particular hiring manager’s track record is questionable, you can share this with the hiring manager during the decision-making process if it appears the questionable record will be extended. You might say: “I understand what you are saying. And, in isolation, it makes sense. However, this is the second occasion in which you have indicated a preference for a white candidate over a black candidate based on your sense of ‘cultural fit.’ How do you think that would play with a judge or jury?”

The EEOC’s Compliance Manual also makes clear that harassment and/or the use of “code words” independent of the selection process may be evidence of bias in the selection process. If HR is aware that a decision-maker has used “code words” that may evidence discriminatory bias, such as “boy” (see Ash v. Tyson Foods Inc., 126 S. Ct. 1195 (2006)), or otherwise engaged in inappropriate conduct of a racial nature (e.g., telling racial jokes), HR can and should monitor that person more closely.

Where a person of color is selected, HR also can help to ensure that the language used relative to the selection is not unwittingly demeaning. For example, complimenting a black candidate for being “articulate” may not be complimentary. To the contrary, if the comment would not be made about a white candidate, then the racial undertones in its application to a racial minority are disquieting at best.

Finally, HR should listen for references to a candidate as a “diversity candidate.” Even if well-intended, such references undermine the candidate’s credentials by focusing on race or color as opposed to credentials. There’s a big difference between a diverse candidate and a stellar candidate who, among other assets, adds diversity.

Author’s Note: This article should not be construed as legal advice or as pertaining to specific factual situations.

Jonathan A. Segal, Esq., is vice chair of Wolf Blocks Employment Services Group and the managing principal of the Wolf Institute, the training and educational arm of the Employment Services Group. Jonathans practice concentrates on preventive planning, counseling and training to maximize an employers legal compliance and to minimize an employers exposure to litigation and other adversarial challenges.

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