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Diversity promotion and affirmative action: employers must walk the line, P.2

Last time, we noted that employers should be cautious about adopting diversity promotion policies which could be characterized as affirmative action. While affirmative action certainly can be legal, such policies must be crafted and implemented to ensure they don’t create other legal problems.  

First of all, employers may be required to adopt affirmative action policies in some circumstances, such as: when a court orders it after a finding of discrimination; when it is required by law; or when it is negotiated as a remedy in litigation. Then there are also situations where employers are allowed to adopt affirmative action policies of their own initiative. 

Employers, of course, must be particularly cautious about workplace diversity policies which are overly based on racial considerations.  When it comes to determining the legality of an affirmative action or diversity promotion policy, courts consider several factors to be of importance. These factors include:

  • Whether the policy or plan involves a quota or inflexible goal
  • Whether the plan is flexible enough that candidates are competing against all other qualified candidates
  • Whether the plan harms the interests of third parties
  • Whether the plan is temporary or ongoing and permanent

The bottom line is that while affirmative action is legal, it should not be done in such a way that workers are unduly favored in the workplace on the basis of their race. Employers attempting to navigate these waters should certainly work with an experienced attorney to receive guidance, as should those who feel they have been subjected to violations of anti-discrimination law in the workplace. 

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