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Managing diversity and inclusion, ethically and legally.


Managing diversity and inclusion, ethically and legally. Managing diversity and inclusion, ethically and legally.

Key Takeaways

  • Recruiters receive requests for diverse candidates, but hiring based on identity is illegal.
  • EEO guidance prohibits discriminatory hiring practices based on stereotypes and assumptions.
  • Employment agencies cannot discriminate or make referrals based on discriminatory categorizations.
  • Well-represented candidate pools are acceptable, without specifying individual characteristics.
  • The Rooney Rule and the “two-in-the-pool effect” are ways to increase diversity without discrimination.

This article from Jenn Tardy is about managing the legal requirements of diversity. To learn more about how to improve your organization's diversity, equity, and inclusion, check out these new guides: Helpful Diversity Recruiting Strategies You Need To Know and Diversity Recruiting Tools to Match Your Organization.

ineffective use of the word diverse, but recruiting teams have described this request as feeling icky, unethical, and some have even come to our team to determine whether it is even legal to intentionally seek out candidates based on how they identify, especially if it is for the sake of increasing diversity in the workplace statistics.

Here is the short version of the answer

Hiring an individual because of how they identify is just as illegal as not hiring an individual because of how they identify. As a matter of fact, this is language that you can use as you are communicating internally with your team.

Here is the longer version of the answer

I want to first encourage you to think about this from an ethical standpoint. In this example, replace the words “Black woman” with “White man.” Would you move forward with a hiring process where your hiring manager asks you to “go find them a White man” to fill the open opportunity? Probably not.

There's EEO guidance with language that says this: “An employer may not base hiring decisions on stereotypes and assumptions about a person's race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.”

So, when your hiring manager comes to you and says (from the earlier example), “Go find me a Black woman to fill this position,” it positions you, as the recruiter, to make assumptions about a person's race along with a hiring decision connected to the same logic. In fact, you may even build a pipeline to fulfill that mission. This framework creates liability (i.e., risk) for your hiring manager and your workplace.

As a matter of fact, here is additional important EEOC guidance regarding employment agencies and unlawful referral practices.

“An employment agency is prohibited from discriminating against its own employees, as well as in its referral practices. An employment agency may not honor discriminatory employer preferences. For example, it is unlawful to accept a job order specifying the race, color, religion, sex, national origin, age (over 40) or disability status of the candidate. An employment agency may not categorize, group or classify job applicants, jobs, or employers based on race, color, religion, sex, national origin, age (over 40) or disability status and make referrals based on the categorizations. For example, it is unlawful to classify and refer only males to “light industry” positions or only females to “clerical” positions. In addition, an employment agency may not maintain a discriminatory environment, or discriminate against its own employees with respect to wages, promotions, etc.”

Now, let's talk about what IS okay

It is okay for your client, or hiring manager, to have a requirement that the candidate pool submitted to them is well represented and to state what representation looks like. Think The Rooney Rule, which is a National Football League policy that requires league teams to interview ethnic-minority candidates for head coaching and senior football operation jobs. Or, think of the “two-in-the-pool effect” as described by HBR, which goes further to explain that “when there was only one woman or minority candidate in a pool of four finalists, their odds of being hired were statistically zero. But when we created a new status quo among the finalist candidates by adding just one more woman or minority candidate, the decision makers actually considered hiring a woman or minority candidate.”

If you are truly working to increase diversity in your workplace and undo a homogenous workforce, consider the ONE formula that you will need in order for it to be successful. If you want to learn more about legal and ethical considerations while working toward increasing diversity, and need more examples of workforce diversity, we recommend checking out two of our most popular guides: The Search Agency's Diversity Recruiting Playbook and Legal Considerations in the Hiring Process (Checklist).

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Jenn Tardy

Jenn is the founder of Jennifer Tardy Consulting, is a diversity and inclusion consultant. She is an official partner to LinkedIn and The Society for Diversity, holder of a Masters in Business Administration, is a Certified Diversity Recruiter (CDR), Certified Diversity Practitioner (CDP), and a Certified Diversity Executive (CDE). Her other projects include Proving What's Possible and being a loving wife and mother.


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