Use voluntary diversity goals as effective tools, not legal land mines

In response to mounting pressure from all sides, employers are racing to implement robust diversity, equity, and inclusion (DEI) initiatives. Increasingly, they're placing a greater emphasis on establishing goals to address the underrepresentation of females and minorities in the workforce. Voluntary hiring and/or promotion goals are an effective diversity tool if properly implemented. When the goals are treated as quotas, however, employers will find themselves facing significant legal liability.

Use goals, not quotas

To be legally compliant, goals should not be treated as rigid "quotas" but rather as aspirational targets. However, Title VII of the Civil Rights Act of 1964 and Executive Order 11246 prohibit employment discrimination on the basis of race and sex, among other categories. Therefore, the U.S. Supreme Court has long held that quotas and/or employment decisions based solely on an individual's protected status like race or gender are unlawful.

Title VII's legal prohibitions against using race or gender in employment decisions have been interpreted to include voluntary affirmative action goals that use protected status as a "plus factor" when making employment decisions between or among equally qualified individuals. The Supreme Court has held that race- or gender-conscious decisions must be used sparingly and be narrowly tailored and are appropriate only when the use of race or gender factors are part of an affirmative action plan that: