You're in the office of Rick Garcia, a department manager for the online version of Working People magazine. He is struggling to decide which of two applicants will be hired. One has slightly superior skills and a proven record of performance. The other is also well qualified but has less experience. The first candidate is Hispanic and the second is African-American. Rick's department is 60 percent Hispanic and has no African-Americans even though the magazine's editor, Margaret Chen, has made diversity one of the publication's core values.
As Rick wrestles with the problem, the action before you freezes. You're in the midst of an online diversity-training program. His dilemma becomes yours as the narrator asks: "How would you advise Rick regarding his hiring decision?"
Thousands of companies are facing such decisions today as they attempt to build diverse workplaces. And since the Supreme Court's June 24, 2003, decision in Grutter v. Bollinger, the answer to this diversity-training exercise has started to change. Justice Sandra Day O'Connor, writing for a divided court, has approved the careful use of race in educational settings as a "plus" factor in individual selections, recognizing the critical importance of building a diverse student body. Now the time has arrived to consider whether this legal lesson should be applied to the corporate workplace.
In today's volatile corporate world, the only constant in a company's formula for success is change. To be competitive, companies must look for new ways to connect with the clients they aim to serve, and to do so they must embrace diversity. The court's decision has taken the old rule that race could be used as a plus factor only when two student applicants were equally qualified (i.e., almost never, as it is virtually impossible to be "equally qualified") and modified it to allow race as a "plus" factor with respect to qualified individuals. This seemingly slight shift from equally qualified to merely qualified creates a foundation for a qualified minority candidate to bypass a qualified non-minority candidate on the basis of race as the "plus" factor. Each situation is judged separately, but the years of whispers and legal fiction may finally be coming to an end. If Justice O'Connor's rationale for law school selection criteria is applied to the workplace, race could be considered in the building of a workplace that honors diversity among qualified applicants. Companies desiring to change the composition of their current staff that have been unable to justify the selection of one well-qualified candidate over another well-qualified candidate may now be able to more openly use race or other "diverse characteristics" as a "plus" factor.
Although at one time they were faltering, corporate diversity programs are now being reborn and structured to mirror many of the criteria used by the University of Michigan Law School. Take Merrill Lynch, for instance. One month after the Grutter decision, the company formed both an external diversity advisory board and an internal diversity employee advisory council in the hope of creating a meritocracy with a diversity focus. One reason why the panels were established was so that Merrill Lynch could look internally at how it was preparing its employees to meet the ever-changing needs of the business environment. Merrill Lynch wanted to develop a diverse employee pool and generate diverse business. The company's openness about its commitment to diversity is establishing a trend that other Fortune 500 companies are sure to follow. If there is any doubt about this trend, enter the words "diversity program" into an Internet search engine and inventory the corporate giants that emerge. From Dell, Microsoft and IBM to General Motors, Johnson & Johnson and General Electric, companies understand that diversity is essential to success in the 21st century.
And now let's go back to the hypothetical Working People magazine, and Rick Garcia's decision between two qualified but unequal applicants. Should he hire the more qualified candidate, regardless of race? Should he hire the African-American candidate but be careful not to admit that race played a role in the decision? Or should he hire only a qualified candidate but consider the positive impact of improving workplace diversity as part of the decision-making process?
Applying the message sent by Justice O'Connor in Grutter, the last choice becomes the most correct one. Of course, hiring decisions are complex, and review by the human resources and legal departments is always wise in situations that could threaten litigation. Nonetheless, the court has issued a bold legal mandate justifying the use of race as a "plus factor" when choosing between qualified candidates. Many employers are interpreting this mandate as being broad enough to reach the contemporary workplace. That is not to say that choosing qualified minority candidates over other qualified candidates will not be without controversy for a limited time. The Supreme Court suggests that it may take 25 years before a truly racially blind selection process could become the legal standard without harming needed diversity. This may be a reasonable life span for the lawful use of race in building a nation of diverse workforces.
Until then, when a workforce more closely parallels the diverse community it serves, a new doorway has opened to achieving diversity without quotas or arbitrary percentages, with an appreciation of the positive contributions of cross-cultural understanding and inclusion. The first steps through this new doorway are taken with awareness of the dangers and risks involved. Nonetheless, it is a journey that corporate America must make.
The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.
Workforce Management, August 2004, p. 14 -- Subscribe Now!