Are Your Hiring Practices Legal?

U.S. law prohibits any kind of selection based on gender, race, sexual orientation and other features, and yet diversity and inclusion in the workplace is talked about more than ever. Without focusing on these distinguishing traits, however, there are deeper diversity factors and viewpoints that contribute in a positive way to a company. Even without outright preferences in hiring selections, there are ways companies can encouraged increased diversity in their applicant pool.

Michael Cohen is a partner at law firm Duane Morris, with more than 15 years of experience in labor and employment law as well as training and counseling. Conducting more than 150 training sessions last year, he also regularly speaks at conferences like SHRM, where he spoke about Dear Helga, a program he put together to help employers deal with less common workplace issues. 

Cohen shared his insight on the nature of diversity from a legal standpoint as well as a collaborative aspect with Diversity Executive. Below are edited excerpts from the interview.

When you do training for executives, faculty or managers, and you want to take the diversity angle into account, what does that entail?

There’s a few messages that you’re trying to communicate. One of them is diversity is not just about race, gender and age. When we focus on diversity, the focus is, first off, on all the different classes protected under the federal, state and local law. It’s focusing on people with disabilities, it’s focusing on LGBT issues, it’s focusing on non-EEO [Equal Employment Opportunity] kinds of issues. Michael Cohen

When we talk about diversity, we certainly do want to focus on increasing the EEO diversity in the workforce, but because you cannot make employment decisions [based on diversity], save very limited exceptions under the law, you do want to increase or encourage the levels of diversity within your organization. You have to look at non-EEO kinds of diversity: in backgrounds, educational experiences, opportunities, income status, geographic location. Then I think you start to get at the heart of what diversity really is all about.

Again, the EEO diversity obviously is critical from a business standpoint, from an environmental standpoint, but because you cannot focus on this EEO diversity when making business decisions, what typically you want to do as much as possible is increase the diversity in the qualified applicant pool by looking at these other types of diversity. When I talked to, regardless of the level of employee, about diversity, aside from the these other two ideas, the overarching message from me is the fact that all of us have to become more sensitive to and aware of the fact that people perceive things differently than you do and that people do have different frames of reference, do have different backgrounds, and we want to embrace these differences in a way that’s going to make employees feel more comfortable, so that the organization is going to become more productive.

You stated in our story about diversity in Marvel, “It’s 2014, and you realize that organizations have to change with the times if they’re going to survive.” Can you expand on that?

The workplace has changed. Don Draper is not working in the office next to you. It’s not 1965, we don’t live in Pleasantville, and not everybody looks the same, acts the same and has the same needs. Organizations, when they’re focusing on diversity, can do things like at least examine the possibility of flexible work arrangements, talk about implementing affinity groups, making sure that as much as possible, as many people as possible can be comfortable in the workplace.

You’re never going to create utopia, you’re never going to create a situation where every employee is happy all the time. But if you can do these kinds of things, that will send a message to your employees that we care about them, and these notions of diversity do matter, we’re going to keep employees happier. The other piece of that is when you have happy employees, you have organizations that are more productive, and they become far more attractive candidates to do work with other organizations who become their clients or their customers.

There are also a lot of organizations these days that put out RFPs [requests for proposals], and as part of the RFPs that you have to complete, they’re asking for diversity information within the organization. They want to know the percentage of male to female, percentage of those 40 and older and under 40. Some organizations I’ve seen in an RFP ask questions about sexual orientation. It’s incredibly difficult to provide that kind of statistical information because people are still very concerned about outing themselves at work, but do things the right way. Are you offering domestic partnership benefits? Are you complying with the new laws, things like the Windsor decisionas it relates to benefits? Things like the change in the application for the Family and Medical Leave Act, to same sex spouses. Are you doing things the right way?

In the past, business hiring practices were, at least in theory, not supposed to take a person’s background into account, instead using just skills. How is this changed today now that diversity is a bigger part of workplace discussions and hiring practices?

The fact in the matter is, from a legal standpoint, the law hasn’t changed in that regard. You still can’t, absent something called the bona fide occupational qualification, BFOQ as it’s referred to, absent being able to prove that membership in a protected class is a BFOQ, which is an extraordinarily high standard to prove. You can’t look around the room and say, “All I have are men here, the next 10 people I’m going to hire are going to be women.” You can’t look around the room and say, “All I see are white faces, we need to hire people of color.” You can’t do that. It’s per se discriminatory against, in this case, men and Caucasians.

The best way to achieve the kind of diversity in a hiring process that we want to achieve is to increase the diversity in the qualified applicant pool, do targeted types of recruiting. The word on the street matters. If the word on the street about an organization is it is not a place that is good to work for if you are a woman, if you are a gay, if you’re Asian, you’re going to have an incredibly difficult time being able to recruit a caliber of talent that you want to recruit. You’re also going to have a real retention problem. If you’re not embracing diversity, you’re going to have trouble maintaining diversity. And you’ll certainly have difficulty in handling those of diverse backgrounds.

If a company doesn’t have diversity measures, what can non-executives and regular workers do?

It comes down to a couple of things. One, you have to make sure you tell the managers — those folks who have decision-making authority — when things are not going well, when there are inequities or unfairnesses occurring in the workplace, whether they’re intentional or not. And unless the manager knows, there’s not a whole lot they can do about it. The other piece of it is, and this is part of trainings that I do all the time with non-management-level employees, is making sure people are treated fairly. Because very often the inappropriate treatment to which non-management-level employees are being subjected comes at the hands of other non-management employees.

We need to make sure that those folks really do appreciate, as I mentioned earlier, the fact that we’ve got to become more sensitive and aware of the fact that people perceive things differently than we do. And the way that happens, some people are born with it, some people are raised with it, some people need to be taught it as an employee, and that is done through training. Whether it’s done by human resources professionals, whether it’s done by an outside council of HR consultants, whomever does it, I think to assume that our employees, not only have the knowledge, but are acting in accordance to that knowledge [is a mistake]. And a lot of times, we really do need to come in and talk to them about why diversity matters and how to maintain and embrace the notions of diversity.

Until the recognition of why it matters occurs, the conduct won’t change. You’ve got to explain to them why this impacts them. Most times you have to explain to employees how it’s going to impact them if you want them to do something about it.

And finally, at the risk of sounding like a lawyer, the diversity of a workplace is going to make it easier to defend, when you get a claim for something like discrimination or when you get a claim for something like harassment.