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5 Diversity Danger Zones

Ensure your good intentions. Don't create unnecessary legal risks.

A sheet of paper with a lightning bolt on it.

​Business leaders are making a conscious effort to increase diversity, particularly at the top. That’s a good thing. But it’s also important to remember that sometimes well-intended efforts can lead to unexpected problems, particularly if you aren’t fully conversant with federal civil rights laws. 

Here are five examples of steps that are sometimes taken to increase diversity but can carry legal risks, and how you can achieve the same outcome without exposing yourself to litigation.  

1. Job Requirements

Most employers include minimum experience requirements in their job postings. When the mandated amount of experience is considerable, however, such a prerequisite can have a particularly negative impact on women and minorities who historically have been denied certain jobs. So take a more thoughtful look at how much and what type of employment background is truly necessary for the positions you need to fill.

At the same time, it’s probably not a good idea to impose caps on experience, as some employers are doing in their efforts to increase diversity, because setting a maximum can adversely affect older workers who are more likely to have experience that exceeds what you need. You don’t want to trade one form of bias for another.

2. Targeted Applicant Pools

One way to boost the diversity of the team is to draw from a more diverse applicant pool. To do that, some HR leaders engage in targeted recruiting aimed at women and minorities.

While this can be a good option, it should supplement, not supplant, your general recruiting strategy. It can be seen as an attempt to ensure that a member of a specific group gets the job as opposed to simply encouraging diversity among available candidates. 

Conduct targeted recruiting at the same time as general recruiting to avoid the appearance of bias against those who were qualified but not a member of the group or groups subsequently targeted.

3. Blind Screening

Studies show that women and people of color are more likely to advance in the hiring process when those who make the decisions about who to interview do not know or suspect the gender, race or ethnicity of the candidates.

That’s why the concept of blind screening—in other words, barring decision-makers from seeing names or other identifying information on resumes or applications—has gained traction among some employers. 

The risk here comes when you make exceptions to this practice. 

Let’s assume that you engage in blind screening for all director positions and above, but not for the chief financial officer role. You don’t need to be an attorney to realize how that move could be argued credibly as evidence that you want to know the equal employment opportunity demographics of candidates in deciding who to interview for the financial officer position.

Don’t commit to this form of hiring unless you are prepared to live with it for the universe of positions to which it applies. Exceptions to the process will be hard to defend. 

4. Implicit Awareness Tests

Two common forms of implicit bias are affinity bias and contrast bias, which refer to having greater or less comfort, respectively, with others based on their similarities or differences from ourselves.

In plain speak, a white woman may be more comfortable with, and therefore favor, another white woman over a man of color. She will be aware of the gender and race of the candidates and might not realize how those factors influence her decisions.

To deal with this problem, some employers give interviewers implicit awareness tests to help individuals uncover their unconscious bias. 

These tests are problematic for three reasons:

• Their validity is questionable.

• Even if the assessments have some value in raising awareness, an individual won’t really know if unconscious bias is happening in the moment because it is, by definition, unconscious. 

• The tests create data that could be used against the company in litigation. 

So avoid implicit awareness tests, but take other steps to mitigate this form of bias.

Consider having a group of diverse individuals interview candidates. We are more able to see implicit bias in others than in ourselves, and having a team with a variety of backgrounds increases the likelihood that the candidate will be vetted based on his or her merits. 

5. Diversity as a Basis for Hiring Decisions

Even when your goal is to increase diversity, you can’t make hiring decisions based on gender, race or ethnicity. You can, however, consider experiences, contacts and job-related skills that may correlate with protected group status. 

For example, suppose your organization wants to increase sales in the Latino community. You could make the ability to speak Spanish fluently a job requirement. Yes, more Latinos than non-Latinos will likely apply, but by basing the requirement on a skill, you won’t be accused of excluding people based on their national origin.   

Jonathan A. Segal is a partner at Duane Morris in Philadelphia and New York City and a SHRM columnist. Follow him on Twitter @Jonathan_HR_Law.

Illustration by Adam Niklewicz for HR Magazine. 


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