Companies needn’t fear Title VII lawsuits

Companies needn't fear Title VII lawsuits

Companies need to continue focusing on hiring and retaining their most talented workers, regardless of race or gender. That’s why you shouldn’t worry about lawsuits over Title VII affirmative action practices. And this is despite the US Supreme Court ruling against Harvard University and the University of North Carolina over their use of Civil Rights Act Title VI anti-discrimination recruiting practices.

Two areas of the landmark 1964 Civil Rights Act are different. Title VI applies to post-secondary education, and Title VII applies to private companies of 50 or more employees with contracts with the federal government (and numerous state laws extend these protections).

With Title VI, the Supreme Court allowed for the consideration of race only based on an applicant’s discussion on how race affected the individual’s identity. Supreme Court Chief Justice wrote in the decision, as reported by the Wall Street Journal:

“For too long, universities have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.”

Roberts said admissions officers could consider “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise,” he wrote. The difference, he added, is that “the student must be treated based on his or her experiences as an individual—not on the basis of race.”

Conservative legal activists are using liberal activist tactics to try and stop diversity and inclusion.

The Wall Street Journal, Yahoo Finance, and Fortune are reporting that conservative legal activists that successfully challenged affirmative action in universities are now taking aim at diversity, equity, and inclusion programs at private companies. They are arguing that companies are violating rules against race- and sex-discrimination, including those drawn from legislation designed to secure the rights of Black Americans.

For example, Yahoo Finance reports the following:

Just six weeks have passed since the U.S. Supreme Court overturned affirmative action, striking down race-based decisions in college admissions. And the subsequent attack on corporate diversity programs that DEI experts feared would happen is unfolding faster than some expected.

In mid-July, 13 Republican attorneys general sent a letter to the CEOs of Fortune 100 companies warning that using race as a factor in hiring and employment practices could result in legal consequences and that the Supreme Court’s June decision could also apply to employers. Arkansas Sen. Tom Cotton (R) sent a similar letter to 51 major law firms later that month.

Just last week, the same group that brought the university affirmative action case to the Supreme Court sued the Atlanta-based Fearless Fund, a venture capital firm that backs Black women entrepreneurs, alleging racial discrimination. And already, companies like Amazon and Starbucks are facing lawsuits challenging their diversity programs, though these suits predate the Court’s decision.

Companies needn’t fear Title VII lawsuits.

But if companies are following the letter of the law, they need not worry about lawsuits by conservative legal analysts. Title VII requires organizations to have an annual affirmative action plan which uses statistical methods to analyze whether a specific job department, such as research and development or marketing, is under-represented by Blacks, Hispanics, or gender, to name a few categories.

The analysis reviews where the company hires its employees, whether including university recruiting and local or national recruiting and compares the availability of qualified Black employees (as an example) from these sources to the percentage of Black employees in their marketing department or research and development department, by job family such as electrical engineers, mechanical engineers, or biomedical engineers.

If the percentage of Blacks working in these job families are less than the availability of qualified Black candidates where they recruit, then the company is underutilized in these categories and is required to set recruitment goals to make up the difference.

The recruitment goals are not quotas with Title VII. The law forbids hiring, training, promotion, and pay decisions based on race and gender. The recruiting goals are to motivate companies to improve their outreach to their sources of job candidates to attract more Black candidates from their sources or to expand their recruiting to other sources that have more qualified and available Black candidates.

“If companies are following the letter of the law, they need not worry about lawsuits by conservative legal analysts”

Improving a company’s outreach can include expanding outreach to Black engineering groups at the universities where they recruit or sponsoring events at universities that highlight the company’s mission or products and having the company’s Black engineers be a part of these events.

Company Affirmative Action Plans do not require quotas.

Affirmative action programs (AAP) require looking at the progress of job candidates in the recruiting process by job, job family, and department. For example, an AAP can inform the HR department of Black engineers’ progress through the recruiting process up to the job interview where a disproportionate number of Black candidates are disqualified. Or it can highlight if there is one hiring manager who has rejected a disproportionate number of Black candidates when compared to other hiring managers. With this analysis, human managers can follow up to ensure that no bias is practiced.

Ideally, these goals lead to having more qualified Black job candidates being interviewed and hired by companies – without the use of quotas and where the company is hiring qualified candidates.

Note: I am not prescribing that companies set arbitrary standards to improve the employee representation of Blacks or any other protected class. Coca-Cola announced a program two years ago to improve the representation of women, LGBTQ+, disabled, racial, and members of ethnic minorities of their outside law firms by 30 percent. Coke was accused of illegal racial quotas by conservative advocacy groups. Later, Coke with a new Chief Legal Council backed down from this position.

I have learned through more than 30 years in HR and with affirmative action that when diversity and inclusion is viewed as a zero-sum game, it becomes too divisive and doesn’t work. Suspicion and anger rise among employees. For more information on Affirmative Action Programs and Diversity, Inclusion and Equity programs that work see my book Hack Recruiting: The Best of Empirical Research, Methods and Process, and Digitization.

“When diversity and inclusion is viewed as a zero-sum game, it becomes too divisive and doesn’t work.”

The best diversity program is having a mission, performance-based, learning, and transparent culture.

What does work is when companies create mission and performance-driven, transparent, and learning cultures. In these cultures, employees are welcomed with onboarding programs that explain the unwritten rules of how work gets done, promotional decisions, and career guidance and advice. Openness helps employees of all races and genders and reduces suspicion because these programs are for ALL employees, not just based on race or gender.

Furthermore, open cultures are shown to be more efficient, productive, innovative, and profitable. In addition, they are better able to attract and retain the best qualified workforce regardless of race and gender. Research by McKinsey and Company shows that when companies have more diverse workforces, management, and Boards of Directors they are more profitable and are better able to attract and retain talent. InnovationOne LLC’s research shows that more open and transparent cultures improve efficiency, innovation and profitability.

In our very competitive labor market with a US labor shortage, companies need to hire and retain the best talent they can get, regardless of race and gender. Affirmative action and diversity initiatives are helpful in helping companies attract qualified candidates when they follow the letter of the law, under Title VII.  And in doing so, companies do not need to fear Title VII lawsuits.

More About Victor Assad

Victor Assad is the CEO of Victor Assad Strategic Human Resources Consulting and Managing Partner of InnovationOne, LLC. He works with organizations to transform HR and recruiting, implement remote work, and develop extraordinary leaders, teams, and innovation cultures. He is the author of the highly acclaimed book, Hack Recruiting: The Best of Empirical Research, Method and Process, and Digitization. He is quoted in business journals such as The Wall Street Journal, Workforce Management, and CEO Magazine. Subscribe to his weekly blogs at


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