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By - Margie Faulk
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In mid-2023, the US Supreme Court made it unlawful for universities and colleges to consider a college applicant’s race in college admissions decisions designed to achieve the objective of a more diverse student body. Although the decision does not address corporate diversity, equity, and inclusion (DEI) efforts in the workplace, the upshot of the Court’s ruling could have implications for such requirements, including the Equal Employment Opportunity Commission (EEOC). The Supreme Court’s decision is likely to result in increased litigation over corporate race-conscious programs under workplace antidiscrimination laws, including under Title VII.
The EEOC regulates private employers seeking to create a Title VII-compliant affirmative action plan. To be lawful, the plan or program must be written, dated and include: 1) a reasonable self-analysis of the employer’s relevant employment practices; 2) a reasonable basis to conclude that an employment practice has or will adversely affect a group previously denied or limited employment or promotional opportunities, fail to correct prior discrimination, or result in disparate treatment; and 3) a narrowly tailored and reasonable action to address the problem identified.
Given the specificity of these requirements, many DEI initiatives may not currently meet the EEOC’s guidelines. Therefore, DEI initiatives that favor a particular race or gender or treat race or gender as a “plus” factor in employment decisions come with legal risk. This need not be a death knell for efforts to combat historic discrimination or inequality outside of formal affirmative action plans, but employers should be cautious when structuring and documenting such efforts moving forward.
Although corporate diversity recruitment efforts can focus on underrepresented minority groups or implement policies to increase diverse applicants in the hiring pool workplace anti discrimination laws prohibit the use of quotas or preferences for applicants of a certain race or gender.
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Margie Faulk
Margie Faulk is a senior-level human resources professional with over 15 years of HR management and compliance experience. A current Compliance Advisor for HR Compliance Solutions, LLC, Margie, has worked as an HR Compliance advisor for major corporations and small businesses in the small, large, private, public and Non-profit sectors. Margie has provided small to large businesses with risk management strategies that protect companies and reduce potential workplace fines and penalties from violation of employment regulations. Margie is bilingual (Spanish) fluent and Bi-cultural. Margie’s area of expertise includes Criminal Background Screening Policies and auditing, I-9 document correction and storage compliance, Immigration compliance, employee handbook development, policy development, sexual harassment investigations/certified training, SOX regulations, payroll compliance, compliance consulting, monitoring US-based federal, state and local regulations, employee relations issues, internal investigations, HR management, compliance consulting, internal/external audits, and performance management. Margie is a speaker and accomplished trainer and has created and presented compliance seminars/webinars for over 16 US and International compliance institutes. Margie has testified as a compliance subject matter expert (SME) for several regulatory agencies and against regulatory agencies, thank goodness not on the same day. Margie offers compliance training to HR professionals, business owners, and leadership to ensure compliance with workplace regulations. Margie’s unique training philosophy includes providing free customized tools for all attendees. These tools are customized and have been proven to be part of an effective risk management strategy. Some of the customized tools include the I-9 Self Audit. Correction and Storage program, Ban the Box Decision Matrix Policy that Employers can provide in a dispute for allegations, Family Medical Leave Act (FMLA) Compliance Guide, Drug-Free Workplace, Volatile Termination E-Book, and other compliance program tools when attendees register and attend Margie’s training. Margie holds professional human resources certification (PHR) from the HR Certification Institution (HRCI) and SHRM-CP certification from the Society for Human Resources Management. Margie is a member of the Society of Corporate Compliance & Ethics (SCCE).
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