ou'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.
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