On January 27, 2022, President Biden announced that the next justice nominated to the US Supreme Court will be a black woman. The President’s announcement left many questioning whether his appointment violates Title VII of the Civil Rights Act, which prohibits race and sex-based employment decisions. However, the protections provided in Title VII only extend to covered employers and employment-related decisions, and not to judicial or other appointments.

So, while the President can guarantee the next Supreme Court justice will be a black woman, employers cannot set forth race or sex-based requirements for hiring or promotion decisions. Such race-based or sex-based decisions are discriminatory in and of themselves. But this leaves many employers wondering – how do I increase diversity if I cannot make race and sex-based employment decisions?

In order to increase diversity without acting in a discriminatory manner, it is critical for managers to be aware of and address practices which may be limiting diversity in the workplace. The following are common issues affecting diversity in the workplace and tips for addressing them:

  1. Notice who is in the room. Account for who is doing the talking. If you notice an employee who is being talked over, or who is under participating, invite them to participate in the discussion. If individuals are routinely interrupted, politely remind others to let employees finish their sentences before speaking.
    • “[NAME], do you have any thoughts on this matter that you would like to add?”
    • “I think [NAME] was still finishing their thought, let’s allow them to finish first.”
  1. Assess who is undertaking house-keeping responsibilities, such as notetaking or coffee-making, and divide those responsibilities equally among staff. Oftentimes, female employees feel pressured to or are assigned housekeeping roles around the office. These roles are necessary for the operation of the office but can detract from the employee’s other projects and obligations. Thus, it is important that housekeeping duties are evenly distributed to all employees, and not placed on any one employee.
  1. Use objective, rather than subjective metrics for measuring performance and promotions. This way you can avoid the appearance of making race or sex-based decisions. However, objective criteria can account for different, non-traditional life experiences, such as work experience in an unrelated field, as evidence of time management and responsibility.
  1. Mindfully assign people to high-value projects and ensure projects are distributed fairly. While you may have one trusted employee to handle high-value assignments, it is important that all employees feel invested in and valued.
  1. Give credit for ideas, especially when they are not yours. This way, employees feel their ideas are valued, heard, and respected in the organization.
  1. Finally, it is critical to create and maintain a culture of acceptance. To do this, it is important to address all instances of discrimination, including microaggressions. Microaggressions are subtle, everyday interactions that convey bias towards a protected class group. Microaggressions may be disguised as a compliment or an innocent question, they may be intentionally discriminatory or unintentional, but regardless of their motive, microaggressions can be damaging to workplace culture and employee relations. Examples of microaggressions include comments or questions such as “where are you from…. no, where are you really from”, “where were you born”, “I have black friends so I can do _____”, “you’re so brave—I could never live with _____ disability”, or referring to a group of individuals in a protected class as “you people.”

In many instances, a single microaggression will not constitute illegal discrimination. However, even a single microaggression can result in decreased employee moral and may result in employees leaving the              organization. The presence of microaggressions can also signal a culture of discrimination. Thus, it is critical for managers and supervisors to address microaggressions through formal or informal disciplinary means.

  • Confront individual who made the microaggression.
  • Ask them to explain their comment.
  • Help commentor understand how or why their comment constitutes a microaggression, and how such comments may make other employees feel.
  • Confirm the commentor understands the severity of their comment.
  • Inform commentor that discipline may be escalated for any repeated microaggressions.

The attorneys at Fishel Downey regularly advise employers on racial and sexual discriminatory issues. If you have a specific question or scenario, and would like assistance, contact one of the attorneys at Fishel Downey Albrecht & Riepenhoff LLP at 614-221-1216.