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Promoting diversity, equity, and inclusion, or DEI in the workplace seems a worthy goal for any employer. After all it is the ethical thing to do, right? And if DEI is ethical, you might think it would be simple enough for any ethical business to implement. Just do the right thing by people, right?  But what exactly is DEI? It turns out this simple three-letter acronym means many different things to different people. A poignant example can be found in a recent exchange on social media between billionaire and “Shark,” Mark Cuban and EEOC Commissioner, Andrea Lucas. Cuban reportedly posted on X (formerly Twitter) that while he would never base hiring decisions solely on race, gender, religion, etc., these characteristics “can be part of the equation.” The post prompted Lucas to respond that Cuban was “dead wrong on black-letter Title VII law.” Clearly there is more to DEI than many people think, and misinterpretations can have serious legal consequences. 

I have written prior articles warning employers that DEI done wrong can get them sued. The recent Supreme Court decisions striking down race-conscious admissions at Harvard and UNC are the most publicized examples. However, there are a growing number of lawsuits claiming DEI initiatives in workplaces amount to unlawful discrimination against those who are excluded. Employers who hopped aboard the DEI bandwagon with little regard to what it actually entails, are playing with fire. DEI must be more than virtue signaling, or adopted because it is deemed “good for business.” DEI done right starts with identifying what it means, and with a keen understanding of what it cannot mean under the law. For as the Greek philosopher Aristotle wrote more than 2000 years ago: “Shall we not, like archers who have a mark to aim at, be more likely to hit [it].”

So, what is the right mark? Better put, how does a business pursue diversity, equity, and inclusion in its workplace without running afoul of the law? The easiest rule of thumb is “do not give preferential treatment to one group over another.” However, doing DEI right is more complicated. As EEOC Commissioner Lucas wrote in her rebuttal post to Mr. Cuban, a common misconception is that employment decisions can be based on protected characteristics so long as they are not the sole basis for hiring, promoting, etc. “As a general rule, race/sex can’t even be a “motivating factor,” – not a plus factor, tiebreaker, or tipping point.” And doing this in the name of DEI is no defense: “There is no ‘diversity interests’ exception to this rule.”

A common reaction to the SCOTUS decisions on college admissions – that that affirmative action is dead – is probably an overreach. Businesses that contract and subcontract with the government are familiar with affirmative action plans (AAPs). These plans can serve as a useful guide to implementing DEI the right way. AAPs do not call for quotas, or using race, color, sex, etc., to as a factor in workplace decisions. Instead, AAPs generally focus on approaches that cast a broad net to encourage diversity of applicants, both internal and external. DEI done lawfully might also involve measures to ensure that opportunities for hiring and advancement in an organization are inclusive of all persons and the processes are equitable but not based on favoritism. Favoring one class over another when it comes time to make hiring or promotion decisions, even if it is merely one of many factors, or done in the name of righting past wrongs, is unlawful discrimination and a recipe for class action lawsuits.

Questions? Contact James Sherman at (952) 746-1700 or by email.

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