Creating An Inclusive Workplace: Understanding Legal Frameworks

Diversity in the workplace is a noble cause for any company to strive for. It is also beneficial for a company's success and performance. However, when recruiting for a diverse workplace, it is important to be aware of the legal implications. In the US, the Equal Employment Opportunity Commission (EEOC) addresses claims under federal Equal Employment Opportunity laws, including the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Genetic Information and Nondiscrimination Act. Under these laws, it is illegal for an employer to discriminate against a job applicant based on race, colour, religion, sex, national origin, age, disability, or genetic information. Positive discrimination, or favouring minority applicants to meet a quota, is illegal in the UK. Instead, employers must make the application process more open and equal. To promote diversity, employers can take steps such as widening the candidate pool, eliminating bias from the hiring process, and ensuring job advertisements are inclusive.

Affirmative action plans

In 1965, President Lyndon Johnson signed Executive Order 11246, which mandated that contractors must not discriminate against any employees or qualified applicants based on race, color, religion, sex, or national origin. This order also required contractors to take affirmative action to ensure non-discrimination in employment practices such as recruitment, advancement, and compensation.

The purpose of affirmative action plans is to ensure equal employment opportunities for applicants and employees. These plans are intended to address past and present discrimination and prevent it from recurring. They are designed to correct or compensate for past discrimination and create an environment where equal employment opportunities can prevail. Affirmative action plans are not about quotas, preferential treatment, or guaranteed results. Instead, they focus on identifying and eliminating barriers to equal employment opportunities and developing action-oriented programs to address any deficiencies.

The U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) enforces affirmative action requirements for federal contractors. Contractors with a certain dollar value of contracts and a minimum number of employees are required to develop and maintain written affirmative action plans. These plans involve comparing the utilization of women and minorities to their availability, setting placement goals, assessing recruitment efforts, and developing programs to address any issues.

It is important to note that affirmative action plans do not permit quotas, preferences, or set-asides. Instead, placement goals and utilization goals serve as benchmarks to measure the representation of different groups within the workforce and identify areas for improvement.

In addition to federal requirements, some states have implemented their own affirmative action plans and diversity initiatives. For example, Assembly Bill 979 in California mandates that publicly traded companies headquartered in the state have a majority of their board members from underrepresented groups.

While affirmative action plans have been criticized as reverse discrimination, they have played a crucial role in increasing the representation of women and people of color in private industry, government, and academia. They provide a framework for organizations to actively promote diversity, equity, and inclusion in their workforce.

Protected characteristics

Diversity and inclusion are top priorities for organisations across industries. However, in an attempt to build an inclusive workforce, businesses must be careful not to engage in "reverse" discrimination. For example, white employees are protected from race discrimination, and men are protected from gender discrimination.

In the US, the Equal Employment Opportunity Commission (EEOC) handles claims under federal Equal Employment Opportunity laws, which prohibit discrimination in every aspect of employment. These laws make it illegal to discriminate against someone (applicant or employee) because of their protected characteristics, also known as "protected classifications". Protected characteristics include:

• Race
• Colour
• Religion
• Sex (including gender identity, sexual orientation, and pregnancy)
• National origin
• Age (40 or older)
• Disability
• Genetic information
• Service in the armed services or reserve units

Additionally, it is illegal to retaliate against someone because they have complained about discrimination, filed a charge of discrimination, or participated in an investigation or lawsuit involving employment discrimination.

To promote diversity and inclusion in the workplace, employers can take several steps. These include developing and implementing diversity and inclusion initiatives, establishing chief diversity officers, providing diversity training, addressing pay equity issues, and improving the collection of demographic data. However, it is important to note that any attempt to diversify the workforce must be an internal and external effort. This means that businesses should ensure that their public image and culture are inclusive and do not put off certain groups from applying for jobs.

Anti-discrimination laws

Diversity in the workplace is a complex issue that requires careful consideration of legal and ethical guidelines. Anti-discrimination laws play a crucial role in fostering an inclusive work environment. Here is an overview of the key anti-discrimination laws that apply when recruiting for a diverse workplace:

The Age Discrimination in Employment Act (ADEA):

The ADEA, enacted in 1967, forbids age-based discrimination against individuals who are 40 years or older. This applies to all aspects of employment, including recruitment, promotions, and termination. The law protects individuals from being discriminated against due to their age and ensures equal opportunities regardless of their age.

The Americans with Disabilities Act (ADA):

The ADA, established in 1990, prohibits discrimination against individuals with disabilities in various areas, including employment. It requires employers to provide reasonable accommodations to employees or job applicants with disabilities, unless doing so causes significant difficulty or expense. This may include providing interpreters, making workplace adjustments, or allowing additional break times.

The Equal Pay Act (EPA):

The EPA outlaws paying men and women different wages for performing the same job within the same organisation. This Act ensures that employees receive equal pay for equal work, regardless of their gender.

State and Federal Laws:

In addition to these federal laws, individual states have their own anti-discrimination laws, statutes, and regulations. Some states have established agencies to handle claims of discrimination, and they may have additional protected classifications beyond those covered by federal law.

Affirmative Action Plans:

While affirmative action plans aim to promote diversity and remedy historical imbalances, they must be carefully implemented to avoid violating anti-discrimination laws. Courts scrutinise these plans closely, and employers must ensure they meet specific requirements, such as addressing a historical imbalance or disparity in the workforce and not unnecessarily infringing on the rights of non-minority employees.

In summary, these anti-discrimination laws provide a framework for creating diverse and inclusive workplaces. They protect individuals from unfair treatment based on their protected characteristics and promote equal opportunities for all. However, it is essential to stay informed about the ever-changing nature of employment laws and seek legal guidance when necessary.

Diversity hiring laws

Equal Pay Act of 1963 (EPA)

Part of the Fair Labor Standards Act of 1938, the EPA was the first federal anti-discrimination legislation in the US. It prohibits gender-based wage discrimination and is enforced by the Equal Employment Opportunity Commission (EEOC). The EPA covers all forms of wage dispensation, such as salary, bonuses, overtime pay, and profit sharing.

Enforced by the EEOC, Title VII makes it illegal to discriminate against job applicants and employees based on race, religion, colour, gender, national origin, age, or disability. It also includes protections for transgender individuals and prohibits forced arbitration for claims related to sexual harassment and assault.

Americans with Disabilities Act of 1990 (ADA)

The ADA prohibits discrimination based on various forms of disability. Title I of the ADA specifically addresses the rights of job seekers and employees in both the private and public sectors. The act was amended in 2008 to expand the definition of disability, ensuring equal opportunities for individuals with physical and mental impairments.

Age Discrimination in Employment Act of 1967 (ADEA)

The ADEA, enforced by the EEOC, forbids age-based discrimination against individuals who are at least 40 years old. This applies to all aspects of employment, including hiring, firing, promotions, wages, and benefits.

State Anti-Discrimination Laws

In addition to federal laws, each state has established agencies and laws to handle claims of discrimination in the workplace. These laws often mirror federal protections but may include additional protected classifications, such as off-the-job conduct like smoking and drinking.

Executive Orders and Affirmative Action

While not specifically a law, Executive orders such as President John F. Kennedy's Executive Order 10925 in 1961, and President Joe Biden's Executive Order 14035 in 2021, have also played a significant role in promoting diversity and affirmative action in the workplace. Affirmative action policies aim to include specific groups based on their gender, race, sexual orientation, religion, or nationality in fields where they are underrepresented.

It is important to note that while diversity hiring is encouraged, companies must also comply with existing employment laws. This means that merit should always be the primary factor in hiring decisions, and companies should avoid "reverse discrimination", where individuals from majority groups are allegedly treated unfairly due to diversity initiatives.

Outreach initiatives

• Understand the Legal Framework: It is essential to be well-versed in the relevant laws and regulations that prohibit discrimination in hiring and employment practices. In the United States, Title VII of the Civil Rights Act of 1964, enforced by the Equal Employment Opportunity Commission (EEOC), makes it illegal to discriminate based on race, colour, religion, sex, national origin, age (40 or older), disability, or genetic information. This includes indicating any racial preference in job postings or advertisements.
• Focus on Pipeline Development: Actively work to increase the pipeline of diverse candidates for middle and senior management roles. This can be achieved by creating mentorship programs, offering internships or apprenticeships to underrepresented groups, and partnering with diverse professional organisations or networks.
• Improve Organisational Culture: Foster a culture that is receptive to and supportive of women and diverse leaders. This includes addressing implicit biases, providing diversity and inclusion training, and encouraging open dialogue and participation from all employees in D&I initiatives.
• Flexible Work Structures: Implement creative solutions for more flexible work hours and structures. This can help attract and retain a diverse workforce, especially those with caregiving responsibilities or other commitments that may benefit from flexible arrangements.
• Inclusive Leadership: Encourage male leaders, who often hold the majority of top-level roles, to actively include and promote women and diverse talent within their networks. This can be facilitated through sponsorship programs, diverse panel interviews for senior roles, and inclusive networking opportunities.
• Unconscious Bias in Job Descriptions: Review and revise job descriptions and postings to ensure they are free from biased language or terminology that may deter female or diverse candidates from applying. Use platforms that can review messaging for bias and provide guidance on inclusive language.
• Intentionality and Commitment: Achieving a diverse and fair workforce requires intentionality and a strong commitment from leadership. Ensure that your recruitment process is comfortable and accessible to all candidates, and that your interviewers and hiring managers are trained to reduce bias in their selection processes.
• Diverse Candidate Pool: Strive for a diverse candidate pool for every position. This means actively sourcing and attracting diverse talent, rather than solely relying on passive candidates. Utilise diverse recruitment channels and platforms to reach a broader audience.
• Focus on Attributes: During the recruitment process, focus on the attributes that make a stellar hire, rather than relying solely on resumes or academic qualifications. Assess candidates holistically, considering their skills, experiences, and potential, to ensure you are not screening out talented individuals from diverse backgrounds.
• Inclusive Workplace Culture: Creating a diverse workforce is just the first step. It is essential to cultivate an inclusive culture where employees from all backgrounds feel a sense of belonging and are supported in their career development. This includes mentorship programs, employee resource groups, and inclusive social activities.
• Set Diversity Goals: Instead of focusing on specific quotas or numbers, set diversity goals for your organisation. This could include targets for diverse representation at different levels or departments within the company, ensuring that your workforce reflects your broader commitment to inclusion.

By implementing these outreach initiatives and strategies, organisations can effectively attract, recruit, and retain a diverse and talented workforce while also complying with relevant anti-discrimination laws and regulations.

For further guidance and support, it is recommended to consult legal professionals and diversity, equity, and inclusion experts who can provide tailored advice for your specific context.

Frequently asked questions