Affirmative action in the balance Featured

11:38am EDT March 17, 2004
Companies can learn to safely negotiate the tightrope toward diversity.

Title VII of the Civil Rights Act of 1964 prohibits discrimination against both minority and majority employees on the basis of race, color, religion, sex or national origin. From the perspective of a manager contemplating an affirmative action plan, this broad prohibition creates an unfortunate dilemma.

On the one hand, organizations with nondiverse work forces face potential liability to minority employees if they fail to take adequate steps to achieve workplace diversity. On the other, these organizations are reluctant to adopt personnel policies that take minority status and/or gender into account in making personnel decisions because majority employees are increasingly likely to sue for so-called reverse discrimination.

The law has long recognized this dilemma, but little has been done to resolve it. Twenty-five years ago, in the landmark decision recognizing the limited legality of voluntary affirmative action plans, the United States Supreme Court noted that the expansive antidiscrimination provisions of Title VII often place managers on "a high tightrope with no net beneath them."

In that decision, and in subsequent pronouncements, the Supreme Court has offered only vague advice to those struggling to maintain their balance atop the tightrope toward workplace diversity.

First, affirmative action plans must mirror the remedial purpose of Title VII; they must, in the Supreme Court's parlance, be "designed to eliminate a conspicuous imbalance in traditionally segregated job categories."

This language has been widely interpreted to mean that affirmative action plans that create preferences in favor of minorities and women are only permissible when intended to redress the effects of past discrimination against those same minorities. The precise implications of this necessary precondition, however, are not well settled.


How is a "conspicuous imbalance" shown?

The method by which an employer demonstrates a conspicuous imbalance depends upon the skill level of the positions at issue.

Where positions are unskilled, it is proper to separately compare the percentage of minority and women employees currently in the position with the percentage of those groups in the work force of the surrounding area.

Where the positions are more skilled, however, the percentage of minorities and women in the position must be compared with the percentage of minorities in the work force of the surrounding area that are qualified to fill the position.

How the surrounding area is defined depends on a variety of factors.


What constitutes a conspicuous imbalance?

Despite the guidance concerning proper comparisons, it remains unclear what minimum ratio constitutes a conspicuous imbalance.

Many practitioners follow the rule of thumb that two or three standard deviations is sufficient, but this standard is not infallible and should not be relied upon without exercising caution.

It is also unclear whether statistics alone will suffice to show a conspicuous imbalance. Many courts require additional, qualitative evidence of past discrimination in addition to numbers.


What facts suffice to show past discrimination against minority and women employees?

Evidence of nonparticularized societal discrimination against a particular minority group is not sufficient to support an affirmative action plan. However, most courts do not require that employers show that they themselves have discriminated against minorities in the past before affirmative action plans can be adopted to correct the resulting imbalances.

Aside from these general guidelines, it remains unclear when evidence of past discrimination in a given industry, craft or geographic area -- or some combination of these three -- will be sufficient. It is also unclear whether, or the extent to which, minority or women employees benefited by affirmative action plans must show that they themselves were the victims of the past discrimination alleged.

Second, as a corollary of the first directive, affirmative action plans must be temporary measures; they must be intended to eliminate a conspicuous imbalance, not maintain an existing balance.

While not a per se requirement, affirmative action plans that contain explicit, flexible diversity goals, and/or a system of periodic checks to measure progress toward goals are more likely to survive challenge than those that are open-ended.

Third, affirmative action plans cannot "unnecessarily trammel" the interests of majority employees. Plans that absolutely bar the hiring or promotion of majority candidates or require the immediate displacement of majority employees and their replacement with minority employees are not permissible.

Plans that use inflexible set-asides or quotas to achieve diversity are also unlikely to withstand challenge.

While helpful, these imprecise guidelines provide little comfort to managers contemplating a perilous walk across the tightrope toward diversity. In fact, divining the Supreme Court's guidelines can prove disastrous.

Much to their surprise, managers have found that the same evidence they amass in determining whether a conspicuous imbalance exists in their work force can be used against them both by minority and women employees in traditional discrimination suits and by majority employees in reverse discrimination cases that challenge the validity of affirmative action plans.

This additional Catch-22 only deepens the manager's dilemma. To the extent an organization compiles data, managers must reflect that past discrimination has produced a conspicuous imbalance in its work force. This process is necessary to ensure that a preference-based affirmative action program is legally permissible under the Supreme Court's guidelines. In compiling this data, however, the company may be building a case for minority and/or women employees who sue for discrimination.

Moreover, once a company has determined that affirmative action is warranted, the dangers attendant in following the Supreme Court's imprecise guidelines do not end. The same information used to justify an affirmative action plan often aids majority employees in challenging any system of preferences that is adopted to address workplace imbalances.

Indeed, this information is frequently used in so-called reverse discrimination cases to demonstrate that an organization considered race and/or gender in hiring minority employees.

Many companies have found the Supreme Court's vague, conflicting guidelines unworkable. Indeed, because existing law offers poor guidance on the propriety of using preferences in hiring and promotion to achieve workplace diversity, it is safer from a legal standpoint and potentially more effective over the long term to address workplace imbalances using a more creative, two-pronged approach that centers on recruiting and retention efforts.

First, managers should take steps to ensure that they select employees from a diverse pool of qualified applicants. They should review their recruiting and referral practices to ensure that those efforts are directed at a diverse audience of potential employees. They should use search firms that consistently provide diverse pools of well-qualified applicants.

Managers should diversify the pool of search firms they use to include those that specialize in the recruitment of minorities and/or women.

Managers should advertise employment opportunities in media that reach a diverse audience of potential employees, and should consider participating in, or creating, community-wide initiatives that focus on minority and female recruitment.

Second, managers should take steps to ensure that they retain minority and women employees by combatting attrition.

Companies should institute training programs that ensure that workplace diversity is valued by all employees (mandatory diversity training, for example) and that its potential advantages are maximized.

They should review their general employment policies and procedures and consider updating policies to address the unique concerns of minority and women employees. They should review their training and mentoring programs, both formal and informal, to ensure that minority and women employees receive the same sponsorship, coaching and support that majority employees receive.

Companies should facilitate the creation of minority- and women-focused networks that connect minority employees inside and outside their companies.

This two-pronged approach to creating workplace diversity offers significant advantages over preference-based affirmative action plans.

If done correctly, this approach ensures that organizations select from a diverse pool of well-qualified potential employees and avoid reliance on a preference system, thus decreasing the likelihood of reverse discrimination suits. From a business standpoint, this approach increases the likelihood that, once hired, minority and women employees will thrive.

Sam Matchett is a partner in the Atlanta office of King & Spalding LLP, where he is a member of the Labor & Employment Practice Group. Reach him at (404) 572-2414 or