Legal Landscape

The Fundamental Hurdle

  • A “diversity initiative” is a strategy intended to increase an institution’s diversity, i.e., widen its range of individuals with different qualities and attributes.
    • It may be adopted to better reflect the community or attract more diverse applicants.
    • It is not intended to systemically remedy the effects of past or present discriminatory systems, practices, or other barriers to equal employment opportunity for individuals in certain protected categories (which would constitute an “affirmative action plan,” subject to a separate set of stringent legal requirements)
  • Although diversity is a laudable goal, no employer can make an employment decision “because of” an individual’s protected “diverse” characteristic without violating the law unless a formal affirmative action plan is in place.  Discrimination in favor of a member of a protected class is otherwise just as much a violation of the law as discrimination against a member of the same class.
    • Federal equal employment opportunity (EEO) laws, taken together, prohibit employment discrimination on the basis of race, color, religion, sex, national origin, age (40+), disability, genetic information, and (for federal contractors) certain veteran status.
    • Federal contractors (which include institutions of higher learning) have additional diversity-related requirements, such as having an affirmative action plan in place.

The Specific Federal Constraints

  • Federal equal employment opportunity (EEO) laws prohibit most employers from engaging in any “unlawful [i.e., discriminatory] employment practice,” based on an individual’s race, color, religion, sex, or national origin;[1] age (for individuals over forty years old);[2] disability;[3] or genetic information.[4]
    • These federal EEO laws apply to most private employers, educational institutions, state and local governments, employment agencies, and labor organizations with fifteen (15) or more employees, thus would seem to apply to many, if not most, orchestras.

(A more detailed list of federal EEO laws, including their particular applicability, is attached as Appendix A.)

  • An “unlawful employment practice” is an employment decision made discriminatorily, i.e., “because of” an individual’s protected characteristic (e.g., race).
  • Illegal discrimination is prohibited in any aspect of employment, including (but not limited to):
    • Hiring and firing;
    • Compensation, assignment, or classification of employees;
    • Transfer, promotion, layoff, or recall;
    • Recruitment and job advertisements;
    • Testing;
    • Training and apprenticeship programs; or
    • Other terms and conditions of employment.[5]
  • Absent a voluntary affirmative action plan (described below), employers may not grant preferential treatment to any individual or group based on his or its protected status, even if such treatment is undertaken to correct an imbalance that exists between the prevalence of a protected group within an employer as opposed to the general/relevant population.[6]
  • Moreover, employers are not supposed to engage in any employment practices wherein a protected characteristic is the motivating factor for an employment practice even if other factors also motivated the practice.[7]
  • Unlawful discrimination may be one of two distinct types[8]:
  • Disparate treatment is intentional discrimination, whereby individuals in certain protected groups are subject to different requirements than other groups.[9]
  • Disparate impact involves a seemingly neutral practice that may be the basis for discrimination because such practice has a disproportionate adverse effect upon members of a protected class.[10]

The “Safe” Zone: Suggested Best Practices

  • Recruiting diverse candidates for board membership.
    • As long as such membership is on a volunteer basis and no employment relationship exists, board member recruitment and retention is usually not covered by federal EEO laws—i.e., a board member may be brought on in part because of her protected characteristic (e.g., race, in order to better reflect the cultural, racial, and ethnic demographics of the community being served).
  • Broadening the employee applicant pool by:
    • Reaching out to organizations that represent different groups.
  • Conducting outreach at a variety of schools, community groups, and other sources of potentially qualified candidates.
  • Encouraging current employees to network and otherwise reach out to potential applicants.
  • Engaging in targeted but non-discriminatory recruitment (e.g., a recruitment event tailored to students of a single race, as long as students of all other races are permitted to attend).
  • Fostering an informal mentorship program among current (and/or prospective) minority employees.
  • Being transparent about criteria for advancement and applying them consistently.
  • Providing diversity education to all employees.
  • For some employers—e.g., federal contractors—creating and implementing affirmative action plans (AAPs) that meet certain criteria.
    • However, voluntary AAPs are potentially problematic (see below).

Warning: Potentially Problematic Practices

  • Establishing a formal, systemic plan to achieve diversity wherein employment decisions are made on the basis of a protected characteristic (e.g., establishing a quota for orchestra members with a particular characteristic).
    • If a formal plan is to be used, a diversity initiative may start to look like a voluntary affirmative action plan (AAP). Though voluntary AAPs are allowed, they must meet fairly stringent criteria in order to avoid violating federal laws (see below).
  • Implementing a retention strategy that rewards achievement of certain diversity thresholds based on protected characteristics (e.g., making diversity retention a consideration in managerial performance evaluations).
  • Encouraging affinity groups (i.e., groups based on a common protected characteristic) that are only characteristic-based rather than at least somewhat interest-based.
  • A voluntary affirmative action plan (AAP) may be used by any employer that wishes to modify employment practices that constitute barriers to equal employment opportunity. However, to be presumptively valid, voluntary AAPs must be adopted in good faith and contain the following three elements:
    1. Reasonable self-analysis: An analysis conducted by an employer to determine whether its employment practices result in adverse impact upon or disparate treatment of protected groups and, if possible, why that is so.
    2. Reasonable basis: If the self-analysis reveals that one or more employment practices:
      • Have, or tend to have, an adverse effect on employment opportunities of members of previously excluded groups; or
      • Leave uncorrected the effects of prior discrimination; or
      • Result in disparate treatment, then
      • The employer has a “reasonable basis” to conclude that action is appropriate; no admission or formal finding that federal law has been violated is required.
    3. Reasonable action: Action taken pursuant to a voluntary AAP must be reasonable in relation to the problems disclosed by the self-analysis.
      • A voluntary AAP may be reasonable even if it includes employment tools that recognize a protected characteristic of employees and/or applicants. Nevertheless, it should avoid unnecessary restrictions on opportunities for the workforce as a whole.
      • Provisions that are conscious of protected characteristics should be maintained only as long as necessary to remedy issues identified in the self- analysis.
  • Additionally, a voluntary AAP is only presumed valid if both the self-analysis and AAP are in writing and dated.
  • For more information about voluntary AAPs, see 29 C.F.R. Part 1608 (2013), which explains when such plans are appropriate and what criteria they must meet to be acceptable.
  • Nothing bars an unsuccessful applicant from challenging the plan in court.

Appendix A: Federal Equal Employment Opportunity (EEO) Laws

  • Title VII of the Civil Rights Act of 1964 (Title VII)[11]: Prohibits employment discrimination based on race, color, religion, sex (including pregnancy status), or national origin.
    • Covers all private employers, state and local governments, and education institutions with fifteen (15) or more employees; private and public employment agencies; labor organizations; and joint labor management committees controlling apprenticeship and training.
  • Equal Pay Act of 1963 (EPA)[12]: Prohibits sex-based wage discrimination against men and women who perform substantially equal work in the same establishment.
    • Covers all employers that are covered by the Fair Labor Standards Act (FLSA), to which virtually all employers are subject.
      • The FLSA covers employees who work for enterprises with two (2) or more employees and either have an annual dollar volume of sales or receipts of ≥$500,000 or are hospitals, businesses providing medical or nursing care for residents, schools and preschools, and government agencies.[13]
  • The FLSA also covers individual workers who are “engaged in commerce or in the production of goods for commerce” as well as domestic service workers.[14]
  • Age Discrimination in Employment Act of 1967 (ADEA)[15]: Prohibits employment discrimination against individuals who are forty (40) years of age or older.
    • Covers all private employers with twenty (20) or more employees; state and local governments (including school districts); employment agencies; and labor organizations.
  • Americans with Disabilities Act of 1990 (ADA), Titles I[16] and V[17]: Prohibits employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments.
    • Covers all private employers, state and local governments, and education institutions with fifteen (15) or more employees; private and public employment agencies; labor organizations; and joint labor management committees controlling apprenticeship and training.
  • Rehabilitation Act of 1973, Sections 501[18] and 505[19]: Prohibits discrimination against qualified individuals with disabilities who work in the federal government.
    • Covers the federal government, incorporating the requirements of the ADA.
  • Genetic Information Nondiscrimination Act of 2008 (GINA), Title II[20]: Prohibits employment discrimination based on genetic information about an applicant, employee, or former employee.
    • Covers all private employers, state and local governments, and education institutions with fifteen (15) or more employees; private and public employment agencies; labor organizations; and joint labor management committees controlling apprenticeship and training.
  • Immigration Reform and Control Act of 1986 (IRCA)[21]: Prohibits employers from requesting verification of legal employability only for individuals of a particular national origin, or individuals who appear to be or sound foreign; it also prohibits certain impositions of citizenship requirements or preferential treatment of U.S. citizens. Such practices may violate the IRCA as well as Title VII.
  • National origin discrimination provisions cover employers with between four (4) and fourteen (14) employees (i.e., those who would not be covered by Title VII).
  • Citizenship discrimination provisions cover all employers with at least four (4) employees (i.e., those who would not be covered by Title VII).

 


[1] Civil Rights Act of 1964, Title VII, as codified at 42 U.S.C. §§ 2000e to 2000e-17 (2012).

[2] Age Discrimination in Employment Act of 1967 (ADEA), as codified at 29 U.S.C. §§ 621-634 (2012).

[3] Americans with Disabilities Act of 1990 (ADA), Title I, as codified at 42 U.S.C. §§ 12111-12117 (2012); id. Title V, as codified at 42 U.S.C. §§ 12201-12213 (2012).

[4] Genetic Information Nondiscrimination Act of 2008 (GINA), Title II, as codified at Pub. L. No. 110-233, 122 Stat. 881 (2008).

[5] See Federal Laws Prohibiting Job Discrimination Questions and Answers, U.S. Equal Emp’t Opportunity Comm’n (Nov. 21, 2009), http://www.eeoc.gov/facts/qanda.html.

[6] Civil Rights Act of 1964, Title VII § 703(j).

[7] Civil Rights Act of 1964, Title VII § 703(m).

[8] Employer Diversity Initiatives: Legal Considerations for Employers and Policymakers at 4, N.Y. City Bar, Committee on Labor & Employment Law (April 2012) [hereinafter Employer Diversity Initiatives].

[9] See Employment Tests and Selection Procedures, U.S. Equal Emp’t Opportunity Comm’n (Sept. 23, 2010), http://www.eeoc.gov/policy/docs/factemployment_procedures.html.

[10] Employer Diversity Initiatives, supra, at 4-5.

[11] v   

[12] 29 U.S.C. § 206(d) (2012).

[13] Fact Sheet #14: Coverage under the Fair Labor Standards Act (FLSA), U.S. Dep’t of Labor, Wage & Hour Div. (July 2009), www.dol.gov/elaws/esa/flsa/scope/screen10.asp.

[14] Id.

[15] 29 U.S.C. §§ 621-634 (2012).

[16] 42 U.S.C. §§ 12111-12117 (2012).

[17] 42 U.S.C. §§ 12201-12213 (2012).

[18] 29 U.S.C. § 791 (2012).

[19] 29 U.S.C. § 794a (2012).

[20] Genetic Information Nondiscrimination Act of 2008 tit. II, Pub. L. No. 110-233, 122 Stat. 881 (2008).

[21] Immigration Reform and Control Act of 1986, Pub. L. 99-603, 100 Stat. 3359 (1986).