Many entities are interested in and committed to achieving diversity in their workforces. Businesses utilizing contingent talent naturally look to their partners to be part of their diversity efforts.

Because of some highly publicized legal challenges to diversity hiring efforts, there has been an increase in anxiety in this area, with businesses (appropriately) asking what they can and cannot lawfully do — and what they can and cannot lawfully ask their partners to do.

The answer: a lot.

The law permits a surprising breadth of actions that can safely and lawfully advance diversity goals. There are some actions that are obviously unlawful, however, and others that are legally risky. This article addresses that line from a high level to empower businesses to act boldly based on a solid understanding of the law.

The Hiring Process

Creating a more diverse workforce starts with the hiring process. There are a few common pitfalls that employers should avoid, especially in light of the June 2023 Supreme Court ruling striking affirmative action in school admissions. In Students for Fair Admissions v. Harvard, the Supreme Court held that diversity guidelines used in Harvard’s admissions process violated the 14th Amendment’s equal protection clause. While the opinion didn’t directly address diversity efforts in employment scenarios, multiple lawsuits have been filed since the Harvard case against companies that have allegedly engaged in discrimination in the name of diversity.

Companies should avoid quotas around interviewing a certain number of diverse candidates for each position, a practice that is currently the subject of litigation in California. Additionally, companies should not require that a specific position, or percentage of positions, must be filled by a diverse candidate. At the end of the day, the company must be able to truthfully say that it hired the best-qualified candidate. In most cases, if any part of an ultimate hiring decision is based on race or sex, that decision is unlawful.

What Can Employers Do?

While it may seem daunting to achieve diversity in hiring without exposure to litigation, there are ways in which employers can work to ensure applicant pools are diverse. Companies can:

• Examine their internal hiring practices.
• Make sure that job postings are free from bias that might tend to exclude diverse candidates.
• Reexamine job requirements to ensure that the requirements are actually aligned with the position and not set up in a way that excludes qualified people.

Candidate pool. The most impactful action businesses can take is to be intentional about getting diverse candidates into the applicant pool. You cannot select winners based on their race or sex, but you can act broadly to make sure diverse candidates are in the game. Strategic recruiting can lead to an increase of diverse and highly qualified applicants. For example, recruiting at institutions or organizations with historically diverse members or populations in addition to other institutions can lead to more applications from diverse candidates. If a job posting seeks internal candidates, all qualified candidates should be encouraged to apply. If you are not getting enough applicants from a particular group, targeting that group through recruitment is typically safe and lawful so long as you are not excluding other groups or non-diverse candidates.

Interview process. The interview process can also be structured to support diverse candidates. Interview panels should comprise people with diverse perspectives while also including decision-makers who are best position to evaluate a candidate’s skills. Companies can also choose to interview more candidates than normal, as an increase could lead to more opportunities for diverse candidates.

Communication. Businesses also need to stay away from rhetoric that creates legal risk. If you hire a candidate, you need to be able to truthfully say that the candidate was the best qualified. In most cases, if any part of your motivation in hiring them was their race or sex, you will lose a lawsuit. Well-intentioned statements from your staff touting diversity efforts can provide evidence that you did, in fact, hire someone because of their race or sex (even if you didn’t). It is easy and common for enthusiastic staff to create legal risk.

Finally, workplaces that are already diverse tend to attract diverse applicants. According to a survey conducted by Glassdoor, about 76% of employees and job seekers reported that they consider the diversity of a workplace when evaluating companies and job offers.

Ultimately, the best candidate is the candidate who should be hired. Companies can work to achieve diversity through hiring practices by supporting the needs of all candidates and ensuring that applicant pools are comprised of people from all backgrounds who are qualified for the job.