A jury’s recent $10 million award to a white man in a discrimination lawsuit should have companies ensuring they are properly balancing their diversity, equity and inclusion (DE&I) programs with anti-discrimination laws.
The award is a “wake-up call,” said Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City. “Pursue diversity but be thoughtful,” he cautioned. Employers “want to increase DE&I, not litigation.”
Novant Health Executive Fired
A former senior vice president of marketing and communication at Novant Health in Mecklenburg County, N.C., said he was fired due to the company’s efforts to diversify top leadership positions. The jury determined that Novant Health failed to prove that it would have dismissed the plaintiff, who said he was replaced by a Black woman and a white woman, regardless of his race, reported
Novant Health is a large health care system of clinics, outpatient centers and hospitals that operates in four states and has more than 30,000 employees. It is headquartered in Winston-Salem, N.C.
“Organizations are continuing to find new areas of liability as a result of overly zealous ‘inclusion’ efforts more akin to exclusionary practices,” said Alexander Alonso, Ph.D., SHRM-SCP, chief knowledge officer for the Society for Human Resource Management in Alexandria, Va. “At its heart, inclusion rests on principles of diversity rather than ‘diss-versity,’ a practice used to identify diverse perspectives as long as they all align. While organizations engage in this practice, the exposure to liability will continue to multiply.”
Novant Health Criticizes Decision
A Novant Health spokesperson told
WSOC-TV 9 that the company would appeal the decision, stating, “We are extremely disappointed with the verdict as we believe it is not supported by the evidence presented at trial, which includes our reason for [the plaintiff’s] termination. We will pursue all legal options, including appeal, over the next several weeks and months. Novant Health is one of thousands of organizations to put in place robust diversity and inclusion programs, which we believe can coexist alongside strong nondiscriminatory policies that extend to all races and genders, including white men. It’s important for all current and future team members to know that this verdict will not change Novant Health’s steadfast commitment to diversity, inclusion and equity for all.”
Finding a Proper Balance
“Gender bias knows no gender. Race discrimination knows no race,” Segal said.
Title VII of the Civil Rights Act of 1964 was passed to provide protection to people historically discriminated against based on race, color, gender, religion and national origin, noted Lori Armstrong Halber, an attorney with Fox Rothschild in Warrington, Pa.; Philadelphia; and Princeton, N.J. That said, employers are prohibited from discriminating against any class of individuals, she noted.
“Employers have found balancing DE&I with anti-discrimination laws to sometimes be challenging,” she said. Affirmative action steps are appropriate to remedy past discriminatory acts, but employers otherwise generally can’t use race as a motivating factor in its decision-making, she explained.
Nonetheless, “DE&I is important to employers and to society,” she said. “All need to be represented in employment.”
This can be accomplished through strong recruiting, she noted. Be sure recruitment efforts include schools, such as historically Black colleges and universities, that give a broader equal employment opportunity to more candidates, for example.
Treat people equitably, Segal advised. He noted one company he came across, and did not represent, that had a manager who told an employee, “I’d love to promote you, but no white men are going to be promoted.”
Segal added that he’s heard an HR professional say, “White men have no rights,” even though under the law they are protected.
It’s unlawful to have quotas, he cautioned, adding that there’s some risk to having objective goals outside affirmative action.
Employers can’t have set-asides either. For example, suppose there are seven men, all of whom are white, on a committee. The committee can’t decide the next member has to be a person of color, he said.
Employers can increase the applicant pool to make it more likely that their workforces will become more diverse. But if two final job applicants are liked equally, gender or race can’t be the tiebreaker under the law, Segal cautioned.
And certainly never remove someone because of their gender, race or ethnicity, he added. “That’s cut-and-dried discrimination.” Instead, “think about expanding the leadership team.”