DEI and the Public Sector

Diversity Equity and Inclusion (DEI) initiatives are becoming a focus for employers, and the public sector is no different. Still, any municipality, county, state, or other subdivision of state government, such as a school or other district, has constitutional considerations that impact its employees’ policies.

Constitutional Concerns

The 14th Amendment of the U. S. Constitution grants equal protection to all citizens, including employees who work in the public sector.  The first section of the fourteenth amendment makes clear that any governmental action that classifies persons by race is presumed to be unconstitutional because of the equal protection clause. Employers who want to hire based on race, even if they are working to diversify their workplace, are subject to the most exacting judicial scrutiny and may not pass that scrutiny.

Any diversity plan that a public employer wishes to implement must be consistent with Title VII’s purpose and cannot unduly infringe any employee’s rights, minority or not. The employer must first determine whether its consideration of candidates’ race is justified by manifest racial imbalance that reflected underrepresentation of a particular minority in traditionally segregated job categories.

The underrepresentation must be present when the plan is developed to determine whether the plan itself provided the proper remedy for that imbalance. This means that there exists some sort of finding of racial imbalance. A full discussion of the court cases that lead employers through a legal thicket is helpful. At the crux of the issue is to never make individual characteristics, such as race, age, or gender, the main reason for the hiring promotional decision.

Public sector employers should be aware that the State of Texas is encouraging the Supreme Court to take a case on how Harvard chooses its students and eliminate race as a consideration altogether. This would override the Supreme Court decision in Fisher v. University of Texas, 136 S. Ct. 2198, 2207 (2016), the most recent Supreme Court decision. The Court upheld an admissions system that allowed race as one of many factors in context. It will be interesting to see if the Supreme Court puts the Harvard case on its docket.

Recommended Actions for Recruiting

There are certain do’s and don’ts, and an article that describes the anti-discrimination law in Utah is helpful since most states’ anti-discrimination laws have strong similarities. The article encourages employers to create a welcoming environment where all people are encouraged to apply for positions at a particular employer, including mentioning this in advertisements. Employers have long been told to use recruiting that casts a wide reach to pull in applicants from many job sites, including those that cater to people across all groups. This is has proven effective for many employers.

The concept of branding in recruiting is gaining popularity, and it could be used successfully when an employer wants to increase diversity. Starbucks has a video of what it is like to work there, and when watching the video, you can see that the population of employees is diverse. To create a strong brand for diversity, conversations with employees have worked well for some employers. These must be approached with curiosity and openness for changing practices and interactions that do not make employees who are different feel welcome in the workplace.

A critical factor for recruiting for diversity is to retain diverse employees. If the employer makes strong efforts to recruit diverse candidates, presumably retaining the employees is also important. A plan of action is to be comfortable following the law while creating a diverse workforce, harnessing the knowledge, skills, abilities, and perspective that diversity can bring. This, again, is where conversations with employees are critical. If this is a path you are following at your workplace, contact Employers Council, we can help.