How do I increase diversity in my workplace without unlawfully discriminating in my hiring practices?

Diversity in the workplace has become a focus for many employers, and for good reason—companies benefit from having a variety of experiences, backgrounds, and viewpoints to draw from. But when people talk about “diverse” employees, they are usually referring to employees whose race, color, sex, national origin, religion, age, ability, gender identity, and/or sexual orientation are different from the employees traditionally found in the company. This means that with a focus on diversity comes potential problems relating to discrimination. How can you find a balance between diversifying your workplace without violating Title VII or the Utah Antidiscrimination Act (UADA)?

This article will help you find that balance by exploring the wrong and right ways to recruit and hire employees who will bring diversity to your workplace and positively impact your company’s culture.

Making Hiring Decisions: An Overview

Increasing diversity in the workplace is a fine goal to have, but it cannot be the only consideration when you are trying to fill a job opening. This is because under the UADA and Title VII, the decision to not hire someone cannot be based on the applicant’s

race;
color;
sex (including pregnancy, childbirth, or pregnancy-related conditions);
gender identity;
age (if the individual is 40 years of age or older);
religion;
national origin;
disability; or
sexual orientation.

A decision not to hire someone because of any of the above classifications constitutes discrimination (except in a very limited number of circumstances that will not be explained here).(1) This means that if you receive two applications for a job opening, one from a Caucasian man and one from a Hispanic woman, you cannot choose to hire the woman solely because you want to increase the number of women and people with various national origins in your workplace.

When selecting a new employee from a pool of applicants, you should always base the decision off of whether the candidate has the education, training, ability (with or without reasonable accommodation), moral character, integrity, disposition to work, adherence to reasonable rules and regulations, and other job-related qualifications that you, as the employer, require for the job you are trying to fill.(2) Of course, any job requirements you impose must actually relate to the job—they cannot be arbitrarily invented and used to discriminate. (This means that you cannot use your desire for a more diverse workplace as a job qualification.)

Although trying to increase diversity in the workplace might seem like the opposite of traditional discrimination, it alone is not a good enough reason to hire an unqualified applicant. The UADA does not require an employer to give preferential treatment to candidates with the classifications listed above even if there is an imbalance with respect to the total percentage of persons with that classification in the workplace compared to the total percentage of such persons in the community.(3) So increasing diversity cannot be used as a justification for any discriminatory hiring practices.

Increasing Diversity in the Workplace

If diversity cannot be used as a job qualification when you review applications for an opening, how do you go about recruiting and hiring diverse employees? As with many legal questions, the answer comes from first examining the wrong ways to do something—i.e. the ways that you can be sure will get you into trouble.

The “DON’T”s

DO NOT include limitations, specifications, or discriminatory language in your job advertisement. An employer who wants to hire more women may be tempted to simply include that in the job posting: “Tech Company Seeking a Female Developer.” Do not do this. The UADA specifically prohibits job advertisements that include limitations, specifications, or discrimination based on any of the classifications listed above.(4)

While most employers know not to blatantly state that they are looking for certain classifications of applicants in a job posting, employers should also avoid using language that suggests they are looking for certain classifications of applicants. For example: a job posting that states an employer is “seeking a youthful, energetic kindergarten teacher” will discourage people over a certain age from applying. This is not allowed. Similarly, a posting that highlights the company’s robust maternity leave benefit is clearly aimed at women, so it violates the UADA.

DO NOT ask anyone for referrals based on protected classifications.(5) If you are looking to hire a candidate who will add racial diversity to your workplace, do not ask around for “any [insert-racial-group-here] who would want to apply” for your open position. Again, you should not be increasing diversity by making discriminatory hiring decisions—only hire applicants who are qualified for the job you want to fill. Diversifying your workplace should only ever be a secondary consideration and can never be your sole motivation for hiring an applicant.

DO NOT ask for protected information in the application. This includes information that would lead to disclosure of protected information in application materials. For example, do not require applicants to include a picture with their application materials, as a picture could reveal several protected classifications such as age, race, national origin, sex, etc.

The “DO”s

Now that you know the wrong way to recruit diverse employees, here are a few suggestions to help you avoid any discriminatory practice:

DO be strategic about where you place your (non-discriminatory) job posting. Find organizations geared toward people who are typically underrepresented in your workplace and post your job notice there. Social media is a great tool to use for this. Also consider diversifying your networking efforts so that you are exposed to more diverse potential applicants. However, remember not to discriminate by asking anyone for classification-specific referrals. Also avoid focusing only on one source for recruitment: for example if you only ever post job notices in Asian restaurants, you could get in trouble for only hiring Asian employees.

DO find ways to attract more diverse job applicants. You can do this by making changes to your company culture or instituting PR campaigns to alter the company’s reputation. For example, working mothers are often drawn to jobs that offer flexibility and good home-work balance so that they can balance their careers and their families. If you create a family-friendly culture, word will spread, and more working mothers will want to apply for jobs at your company.

Another possibility is to include a mission statement in the job posting that attracts more diverse individuals than you already have. For example, your mission statement could include a clause such as: “We believe in fostering inclusion, acceptance, and understanding in our community by employing individuals who bring unique perspectives to the company.”

DO include a (non-discriminatory) statement promoting diversity in your job posting. Such a statement could look something like this: “All interested individuals, including people of all races and national origin, people of all ages, people of all religions, people with or without disabilities, and/or people with any gender identity and sexual orientation, are urged to apply.” Again, be sure that your statement does not specifically encourage or discourage applications from only those with certain classifications.

Final Tip for Avoiding Discrimination Claims

A good way to avoid discrimination claims is, of course, to not discriminate in the first place. But, as employers who have faced meritless discrimination claims will tell you, sometimes even that isn’t enough. Employers should institute practices that will help them avoid discriminating during the hiring process while simultaneously protecting them from claims of discrimination that have no merit.

A great way to avoid or respond to claims of discrimination while hiring is to document every part of the hiring process. This includes keeping copies of the job posting, any resumes/applications the company receives in response to the posting, and all interviewers’ notes (which means whoever is involved in the hiring process should actually be taking notes). The better documented the process is, the easier it will be to ensure and to show that all hiring decisions were based on job qualifications, not protected classifications.

Summary

Remember that while diversity is a permissible goal for your workplace, it does not justify discriminating against job applicants who are qualified for the job but who will not increase diversity. If the only reason you have for not hiring a qualified applicant is that the applicant won’t help you in your goal to increase diversity, you are discriminating against that individual. Increase diversity by implementing strategic recruitment strategies and by creating a culture that caters to a variety of employee interests and needs.

Note: this article was written specifically for companies who are subject to the relevant provisions of the Utah Antidiscrimination Act or Title VII, such as employers who have at least 15-20 employees.(6) If you are unsure of whether your company is subject to Title VII or the Utah Antidiscrimination Act, or if you have any other questions relating to discrimination or diversity in the workplace, call Crook & Taylor Law at 801.326.1943 to speak with a lawyer.

This article was written for informational and educational purposes only. It is not intended as legal advice or as a substitute for legal advice. Reading this article does not create a lawyer-client relationship between the reader and Crook & Taylor or any attorney. The rules and recommendations discussed in this article are valid as of the date this article was published or last modified, if applicable.