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DIVERSITY INITIATIVES AND THE BACKLASH OF REVERSE DISCRIMINATION CLAIMS
The Florida Bar Journal – Vol. 95, No. 5 September/October 2021 Pg 42 Jacqueline M. Prats Labor and Employment Law

By now, most Americans have probably heard of the Black Lives Matter and Me Too movements. Although the Black Lives Matter movement had been active for a number of years, it gained international attention in the summer of 2020 when protests broke out across the nation in response to the killing of George Floyd by a Minneapolis police officer.[1] Among the issues highlighted during the months of protests that followed were the inequalities affecting Black people and other people of color in the workplace.[2] Three years before that, in 2017, the Me Too movement (itself happening on the heels of the 2017 Women’s March[3]) became a global phenomenon as women flooded social media with stories tagged #MeToo describing their experiences of sexual assault or harassment; this flood of stories served to focus the nation’s attention on inequalities affecting women in the workplace.[4]

Many employers responded to the heightened attention surrounding these movements and the resulting cultural shifts by implementing diversity programs or enhancing the programs they already had in place. For example, in the months following the 2020 protests, the rate of hiring for new diversity officers nearly tripled among companies in the S&P 500 index,[5] and a number of household-name corporations, including Microsoft, McDonalds, Boeing, IBM, Facebook, and Google have made public pledges to increase the diversity of their workplaces.[6]

Predictably, there has been a backlash to the growing attention to workplace inequality and the resulting efforts by employers to increase diversity in the workplace. Anecdotally, employment attorneys have reported increases in “reverse discrimination” claims[7] — that is, discrimination claims asserted by employees who do not belong to traditionally marginalized groups — and several large corporations, including Google, YouTube, and Starbucks, have seen reverse discrimination claims make national news in recent years.[8] In late 2020, this backlash was reflected in the Trump administration’s issuance of Executive Order 13950, which prohibited federal agencies and contractors from implementing diversity training espousing an enumerated list of “divisive concepts,” among other things.[9] Although President Biden issued executive orders revoking the previous administration’s executive order and affirming his administration’s commitment to diversity,[10] it is not difficult to imagine that some employees could repurpose the arguments presented in Executive Order 13950 to add to the growing tide of reverse discrimination claims against private employers who implement voluntary[11] diversity programs, a tide that was on the rise even before Executive Order 13950.[12] This push-and-pull puts employers in the unenviable position of trying to effectively diversify their workforces, while trying to dodge reverse discrimination claims from unhappy members of traditionally non-marginalized groups.

What Is a Reverse Discrimination Claim?

Title VII of the Civil Rights Act of 1964[13] protects employees from discrimination on the basis of their race, color, religion, sex, or national origin.[14] Although Title VII was enacted with the goal of protecting members of minority[15] groups, it is well-settled that Title VII protects those on both sides of the “minority/majority” divide; for example, white or male employees enjoy essentially the same protections as black or female employees.[16] In rare circumstances, a plaintiff is in a position to present direct evidence of discrimination, where such evidence (if believed) “proves the existence of a fact without inference or presumption”; in these cases the burden-shifting framework becomes unnecessary and the plaintiff has fewer obstacles to prevailing on a discrimination claim.[17]

Discrimination cases under Title VII, which are often presented using circumstantial evidence, are commonly analyzed using the burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A Title VII plaintiff complaining of discrimination first has the burden to establish a prima facie case of discrimination by showing that the plaintiff 1) belongs to a protected class; 2) is qualified for the position in question[18]; 3) was subjected to an adverse employment action[19]; and 4) was treated less favorably than an individual outside the class. If the plaintiff establishes the prima facie case, the burden shifts to the defendant to show that it had a legitimate, nondiscriminatory reason for taking the adverse employment action. If the defendant successfully does so, the burden shifts back to the plaintiff to show that the defendant’s proffered reason(s) is pretextual.[20]

“Reverse discrimination” claims are so-called in recognition of the fact that, typically, a Title VII plaintiff is a member of a minority group complaining of mistreatment on the basis of that membership, often by a member of a majority group. In reverse discrimination claims, that dynamic is reversed. In some jurisdictions, courts have altered the first prong of a traditional prima facie discrimination case, requiring reverse discrimination plaintiffs to show “background circumstances [that] support the suspicion that the defendant is the unusual employer who discriminates against the majority.”[21] However, in the 11th Circuit, the “background circumstances” requirement has been rejected, and reverse discrimination claims are treated the same way as “normal” discrimination claims.[22]

How Can an Employer Be Vulnerable to Reverse Discrimination Claims?

Diversity programs necessarily involve Title VII-protected characteristics of employees and job applicants — that is, they permit or require an employer to consider an individual’s race, gender, or other protected characteristic as part of a hiring, firing, promotion, or other employment decision for the purposes of increasing the numbers of minority, or other historically disadvantaged groups, in a workforce.[23] As a result, employers implementing certain types of diversity programs, particularly affirmative action plans, must tread carefully or risk running afoul of Title VII’s prohibitions against making employment decisions based on such protected characteristics.[24] Critically, a voluntary affirmative action plan must be backward-looking to be valid under Title VII. In other words, it must be designed to remedy historical discrimination:

It is only because Title VII was written to eradicate not only discrimination per se but the consequences of prior discrimination as well, that [protected-class] preferences in the form of affirmative action can co-exist with the [a]ct’s antidiscrimination mandate. Thus, based on our analysis of Title VII’s two goals, we are convinced that unless an affirmative action plan has a remedial purpose, it cannot be said to mirror the purposes of the statute.[25]

Two U.S. Supreme Court cases, United Steelworkers of America v. Weber, 443 U.S. 193, 201 (1979), and Johnson v. Transportation Agency, 480 U.S. 616, 638 (1987), articulated the standard for determining whether a voluntary affirmative action plan is valid under Title VII. The plan must 1) be designed to remedy a “manifest imbalance” in a “traditionally segregated job category”; and 2) not “unnecessarily trammel” the rights of nonminority employees, nor serve as an “absolute bar” to their advancement.[26]

Regarding the first prong, determining whether a “manifest imbalance” exists generally involves comparing the percentage of minority employees within a workforce and the percentage of minority individuals in the labor market of the employer’s general area.[27] As for whether a job category is “traditionally segregated,” evidence of whether a manifest imbalance exists can itself be evidence that the job category is traditionally segregated; also probative are analyses of the historical makeup of the job category showing the nature and extent of the imbalance.[28]

Regarding the second prong, the 11th Circuit has explained that “[t]here is no precise formula for determining whether an affirmative action plan unnecessarily trammels the rights of non-beneficiaries.”[29] “In determining whether the affirmative action plan unnecessarily trammels the interests of non-minorities, courts focus on the nature of the plan — including whether the plan is temporary,…was intended to attain or maintain a racial balance,…imposes quotas,…requires the discharge of white employees, and…is over-inclusive.”[30] Courts may additionally consider whether an affirmative action plan’s time limit is definite or whether the plan’s termination condition is unclear or nonexistent; the latter is more likely to be found invalid.[31]

Additionally, courts consider the type(s) of employment decisions governed by the plan. In a case involving a race-based plan, the 11th Circuit reasoned that “[e]ntry-level hiring goals, while burdening some innocent persons, do not impose the same type of injury on non-beneficiaries as that imposed by the use of race to determine employee layoffs. Layoffs impose the entire burden of achieving…equality on particular individuals, often resulting in serious disruption of their lives. We view the promotion situation as lying somewhere between entry-level hiring and layoffs in terms of the burden permitted on non-beneficiaries.”[32] An affirmative action plan affecting hiring is much more likely to be valid than one affecting how employees are chosen for layoffs.[33] Other factors may include the benefit offered by the affirmative action plan, and the extent to which the plan serves as an “absolute bar” to the advancement of non-beneficiaries of the plan.[34] In Johnson, the Supreme Court found that an affirmative action plan for promotions did not unnecessarily trammel the rights of male employees where it “set[] aside no positions for women…[but] merely authorize[d] that consideration be given to affirmative action concerns when evaluating qualified applicants,” did not automatically exclude anyone from consideration and required women to compete against all other qualified applicants.[35]

Additionally, affirmative action plans must have clear goals and standards carefully crafted to take into account the percentages of minority employees currently in the workplace (including, if applicable, their percentages in entry-level positions and management), their percentages in the general market, and the timeline within which the employer plans to attain the desired diversity goals and terminate the affirmative action plan, or else the affirmative action plan risks a court finding that it is too vague to satisfy the second prong of the Weber-Johnson standard.[36]

In short, crafting the type of diversity program that provides for characteristic-conscious employment decisions and passes Title VII muster is possible, but tricky. Such a plan is complicated to construct, as it requires careful analysis of the composition of the workforce and relevant labor markets, as well as careful consideration of the nature and degree of a plan’s goals and benchmarks. Also, even if an employer has the resources and motivation to construct such a plan, it may not even be available to employers that cannot make the necessary “manifest imbalance” or “traditionally segregated” showings.

What About Other Diversity Initiatives?

In light of the unforgiving landscape of traditional affirmative action plans, it is unsurprising that such plans are not especially popular (at least, in the private sector; public sector employers, including government contractors, may have robust affirmative action obligations).

Instead, many private-sector employers have implemented other types of diversity programs, including those consisting of anti-bias/anti-discrimination training. There are sound legal reasons to conduct such training,[37] and employers who are already conducting anti-bias/anti-discrimination training may find it easy to add diversity and inclusion training components to their existing programs. However, a growing body of evidence suggests that many forms of anti-bias/anti-discrimination training do little to move the needle on workplace diversity, in part because such training does little to move the needle on employees’ prejudices.[38] Such training has been widespread for many years, yet studies show that workplace diversity, particularly with regard to diversity in management roles, has remained fairly stagnant since the 1980s.[39]

A variety of other types of diversity initiatives exist that have shown some promise in terms of making gains in workplace diversity. Examples include making mentoring programs available to minority employees; improving transparency about the minority/majority breakdowns of an employer’s workforce; and creating diversity task forces to identify and address diversity issues within a company.[40] Forming affinity or employee-resource groups is another popular type of initiative. Affinity or employee-resource groups (ERGs) are often volunteer-led and are “[t]ypically organized around a shared identity,” such as race, gender, ethnicity, or other protected characteristic, and they can provide minority employees with networking and mentoring opportunities and a forum to discuss issues that affect their particular minority group.[41] ERGs have had some success in improving recruitment of minority applicants, diversifying hiring pools, and retention of minority employees.[42] Employers should still tread carefully with regard to implementing diversity initiatives such as these (for example, ERGs, mentoring groups, and task forces should be treated the same way as other groups of the same type to reduce the risk of reverse-discrimination claims).[43] But these types of initiatives do not have the same stringent requirements of the traditional affirmative action programs described above.

Another diversity initiative that bears some similarities to, but is less risky than, the affirmative action programs described above, and which evidence suggests is more effective at improving workplace diversity than anti-bias/anti-discrimination training,[44] is the practice of setting goals to increase the diversity of hiring and promotion pools, or to consider a certain percentage of minority candidates for certain positions. Critically, these are not goals to attain a certain percentage of minority employees; they are goals to consider a certain percentage of minority applicants.[45] The point of initiatives like these is not to consider any applicant’s protected characteristic as a factor in the employment decision itself, nor is the point to exclude any applicants on the basis of their membership in a majority class. The point is to consider more minority applicants according to the same criteria and subject to the same procedures as all other applicants in a hiring pool. Courts have found that “affirmative recruitment” efforts are characteristic-neutral, which can present a substantially lower risk than a traditional, characteristic-conscious affirmative action plan; in fact, the Eighth Circuit has said plainly that:

An employer’s affirmative efforts to recruit [minority] applicants does not constitute discrimination. An inclusive recruitment effort enables employers to generate the largest pool of qualified applicants and helps to ensure that [minorities] are not discriminatorily excluded from employment. This not only allows employers to obtain the best possible employees, but it “is an excellent way to avoid lawsuits.” The only harm to [majority applicants or employees] is that they must compete against a larger pool of qualified applicants. This, of course, “is not an appropriate objection,” and does not state a cognizable harm.[46]

Moreover, some research indicates that increasing workplace diversity can become a self-reinforcing cycle; contact between peers of minority and majority groups has been shown to weaken unconscious biases, which in turn can lead to increases in workplace diversity.[47] One example of an initiative like this is the Mansfield Rule program, which aims to increase the diversity of the legal industry:

The idea is that when you have a level playing field and expand your candidate pool to include more than one woman or diverse attorney, those candidates are more likely to be judged on their qualifications and there is a greater likelihood of a deserving woman, minority, LGBTQ+ or attorney with disabilities getting the job or promotion. Firms participating in the Mansfield Rule set benchmarks that women, minority, disabled and LGBTQ+ lawyers make up at least 30 percent of the candidate pool [for an enumerated list of positions].[48]

The Mansfield Rule program, administered by the Diversity Lab,[49] was based on the Rooney Rule, a rule originally instituted in 2003 by the National Football League (NFL) that required NFL teams to interview at least one minority candidate for certain jobs.[50] Among the jobs subject to the Rooney Rule, the NFL saw modest increases in diversity.[51] In May 2020, the NFL announced expansions of the Rooney Rule, increasing the number of minority candidates who must be interviewed for certain positions and increasing the number of positions subject to the rule.[52] Diversity Lab also reports that some participating law firms have seen substantial increases in the diversity of their partner and management ranks, and it has announced “Mansfield Rule 4.0,” which is an update to the program that takes into account the economic hardships that may have been caused by the pandemic.[53]

Conclusion

The benefits of workplace diversity are myriad,[54] and worldwide social movements of the last few years have provided more incentive than ever for employers to seriously consider how to increase the diversity of their own workforces. Although traditional affirmative action plans can be an option, they may be too risky for many employers to consider, unavailable to large swaths of employers, and may court reverse discrimination claims from unhappy majority employees or job applicants. Instead, employers may wish to consider other diversity initiatives, including “affirmative recruitment” and other measures that do not require employers to make characteristic-conscious employment decisions.

[1] Larry Buchanan, Black Lives Matter May Be the Largest Movement in U.S. History, N.Y. Times, July 3, 2020, available at https://www.nytimes.com/interactive/2020/07/03/us/george-floyd-protests-crowd-size.html.

[2] See, e.g., Callie Ahlgrim, Here’s Everything You Need to Know About Blackout Tuesday and #TheShowMustBePaused Initiatives, Insider, June 2, 2020, available at https://www.insider.com/what-is-blackout-tuesday-the-show-must-be-paused-purpose-backlash-2020-6.

[3] See note 1.

[4] Alix Langone, #MeToo and Time’s Up Founders Explain the Difference Between the 2 Movements — And How They’re Alike, Time (Mar. 8, 2018), available at https://time.com/5189945/whats-the-difference-between-the-metoo-and-times-up-movements.

[5] Jeff Green, Companies Scramble to Hire Diversity Officers, But Progress Is Slow, L.A. Times, Mar. 12, 2021, available at https://www.latimes.com/business/story/2021-03-12/companies-are-scrambling-to-hire-diversity-officers.

[6] Id.; Maria Armental, Microsoft CEO Pledges to Back Racial-Justice Efforts through Promotion, Investment Initiatives, Wall Street J., June 23, 2020, available at https://www.wsj.com/articles/microsoft-ceo-pledges-to-back-racial-justice-efforts-through-promotion-investment-initiatives-11592958197?mod=article_inline.

[7] Barry Bridges, In #MeToo Era, Some Lawyers Fielding More ‘Reverse Discrimination’ Queries, New England in House (Nov. 25, 2019), available at https://newenglandinhouse.com/2019/11/25/in-metoo-era-some-lawyers-fielding-more-reverse-discrimination-queries; Josh Van Kampen, ‘Reverse Discrimination’ Lawsuits Becoming an Increasing Concern, https://www.ncemploymentattorneys.com/news/reverse-discrimination-lawsuits-are-concerning.

[8] Erin Mulvaney, Diversity-Fueled ‘Reverse’ Bias Claims Put Employers in Quandary, Bloomberg Law, Oct. 8, 2020, available at https://news.bloomberglaw.com/daily-labor-report/diversity-fueled-reverse-bias-claims-put-employers-in-quandary [hereinafter, Quandary]; Lauren Weber, White Men Challenge Workplace Diversity Efforts, Wall Street J., Mar. 14, 2018, available at https://www.wsj.com/articles/white-men-challenge-workplace-diversity-efforts-1521036001; see Damore v. Google LLC, 18-cv-321529, Superior Court of California, Santa Clara County (San Jose) (male former employee suing Google after being terminated for circulating memo positing that women were inherently less suited than men for working in tech).

[9] Combating Race and Sex Stereotyping, 85 FR 60683, Sept. 22, 2020, revoked by Advancing Racial Equity and Support for Underserved Communities through the Federal Government, 86 FR 7009, Jan. 20, 2021. Enforcement of this Executive Order was quickly enjoined in part by Santa Cruz Lesbian & Gay Cmty. Ctr. v. Trump, 20-CV-07741-BLF, 2020 WL 7640460 (N.D. Cal. Dec. 22, 2020).

[10] 86 FR 7009; Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, 86 FR 7023, Jan. 20, 2021.

[11] For the purposes of this article, the term “affirmative action” refers to voluntary affirmative action programs, rather than affirmative action programs mandated by the laws, rules, and regulations governing federal or state agencies or contractors; affirmative action programs imposed on employers as a result of conciliation with the EEOC and/or consent judgments; or any other form of compulsory affirmative action program.

[12] See Quandary (noting that the Trump administration’s order “provides another argument for racial majority members to challenge a practice that previously we believed was legal and desirable to expand hiring pools”).

[13] 42 U.S.C. §2000e, et seq.

[14] 42 U.S.C.A. §2000e-2(a).

[15] Although women, in fact, make up a slight majority of the U.S. population, see Lindsay Howden & Julie Meyer, 2010 Census Briefs, Age and Sex Composition: 2010 (May 2011), https://www.census.gov/prod/cen2010/briefs/c2010br-03.pdf (50.9% women to 49.1% men), they are among the historically disadvantaged groups Title VII was enacted to protect; thus, this article includes women in the term “minority group.”

[16] See United Steelworkers of Am., AFL-CIO-CLC v. Weber, 443 U.S. 193, 201 (1979).

[17] Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004); Cooper v. Southern Co., 390 F.3d 695, 724 n. 15 (11th Cir. 2004), overruled on other grounds Ash v. Tyson Foods, Inc., 546 U.S. 454, 458 (2006) (noting that “a frank admission from a manager that he refused to hire an applicant because he was black or because she was female” would be an example of direct evidence).

[18] The position in question varies, depending on the type of discrimination being alleged. For example, a job applicant or employee complaining of hiring or promotion discrimination will have to show they were qualified for the position being sought. See Schoenfeld v. Babbitt, 168 F.3d 1257, 1267 (11th Cir. 1999). An existing employee complaining of discriminatory treatment in their current position will have to show they were qualified for that position. See Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008).

[19] This prong, too, can vary depending on the type of discrimination being alleged; adverse employment action encompasses, for example, discharge, failure to hire, failure to promote, and other adverse actions that cause “a serious and material change in the terms, conditions, or privileges of employment.” See Crawford, 529 F.3d at 970-71.

[20] See id. at 970.

[21] Shea v. Kerry, 961 F. Supp. 2d 17, 31 (D.D.C. 2013), aff’d, 796 F.3d 42 (D.C. Cir. 2015) [hereinafter, Shea I].

[22] Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1325 (11th Cir. 2011).

[23] Caselaw often refers to affirmative action employment decisions as “race-conscious,” “gender-conscious,” etc., depending on the protected characteristic in question. This article refers to such decisions as “characteristic-conscious.”

[24] For example, an employer’s implementation and use of a voluntary affirmative action plan, if the plan fails to meet strict requirements (discussed below), can be considered direct evidence of discrimination in an employee’s Title VII discrimination claim. Bass v. Bd. of County Com’rs, Orange County, Fla., 256 F.3d 1095, 1104 (11th Cir. 2001), overruled in part on other grounds by Crawford, 529 F.3d at 961.

[25] Taxman v. Bd. of Educ. of Tp. of Piscataway, 91 F.3d 1547, 1557 (3d Cir. 1996) (emphasis in original).

[26] Johnson, 480 U.S. at 632 (quoting Weber, 443 U.S. at 99).

[27] In re Birmingham Reverse Discrimination Employment Litig., 20 F.3d 1525, 1537 (11th Cir. 1994). For highly skilled job categories, however, the comparison should be between the makeup of the workforce and the makeup of the pool of individuals who possess that particular skill. Id.

[28] Shea v. Kerry, 796 F.3d 42, 60 (D.C. Cir. 2015) [hereinafter, Shea II] (job category was traditionally segregated “where evidence of pervasive historical discrimination…tracing as far back as the 1960s” existed). Notably, the “manifest imbalance” standard is “not tantamount to a prima facie case of discrimination against an employer”; that is, the fact that an employer meets the “manifest imbalance” standard does not necessarily mean that it has engaged in actionable discrimination. Taxman, 91 F.3d at 1556. A 2009 Supreme Court decision, Ricci v. DeStefano, 557 U.S. 557 (2009), applied a standard previously applied to 14th Amendment cases to a Title VII case, suggesting that in order for an employer to implement an affirmative action plan that would violate Title VII’s disparate treatment provision (absent some valid reason), the employer must show that it had a “strong basis in evidence” to believe it would face liability under Title VII’s disparate impact provision. However, as the D.C. Circuit pointed out, Ricci did not involve an affirmative action plan, and the majority’s opinion did not mention the standards previously set out in the Supreme Court’s Johnson and Weber decisions; therefore, the D.C. Circuit concluded that Ricci does not change the two-prong standard articulated above. Shea II, 796 F.3d at 55 (noting that “[t]he only other court of appeals of which we are aware to have addressed the interaction between Ricci and the Johnson–Weber framework reached the same conclusion” and citing to United States v. Brennan, 650 F.3d 65, 102-04 (2d Cir. 2011)).

[29] In re Birmingham, 20 F.3d at 1541.

[30] Shea I, 961 F. Supp. 2d at 28.

[31] Taxman, 91 F.3d at 1564 (noting that “valid affirmative action plans are temporary measures that seek to attain, not maintain a permanent racial balance”) (citations and quotations omitted).

[32] In re Birmingham, 20 F.3d at 1542.

[33] E.g. Taxman, 91 F.3d at 1564.

[34] Shea II, 796 F.3d at 61 (plan was valid where, among other things, it affected only hiring; provided only for the hiring of qualified applicants; sought only to attain a more diverse workplace, not maintain a particular balance indefinitely; and did not create an absolute bar on non-beneficiary employees in that it still allowed for job applications from outside individuals and internal non-beneficiary candidates could be and were promoted).

[35] Johnson, 480 U.S. at 638.

[36] In re Birmingham, 20 F.3d at 1542 (promotion quota unnecessarily trammeled non-black employees’ rights because it was “completely uninfluenced” by the percentage of black employees in workforce); Taxman, 91 F.3d at 1564 (affirmative action plan unnecessarily trammeled non-black employees’ rights where it was vague and “devoid of goals and standards”; additionally, plan was applied to employee termination decisions rather than hiring/promotion decisions).

[37] Such programs often include anti-harassment training, because harassment is considered a form of discrimination. These can be enormously helpful to employers in establishing a defense against certain types of harassment claims under Title VII, particularly when the accused harasser is the employee’s supervisor, and when the harassment alleged is hostile work environment, not quid pro quo or tangible adverse action. If an employee is harassed by a supervisor, it can be easier to hold the employer liable for that harassment than if the accused harasser were the victim’s coworker. But under the right circumstances, if an employer can satisfy the requirements set forth in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), by proving “(a) that [it] exercised reasonable care to prevent and correct promptly any…harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise,” then the employer may be able to take advantage of the Faragher defense and escape liability under Title VII. Id. Evidence that an employer promulgated a comprehensive anti-harassment policy providing avenues for employees to bypass a harassing supervisor to report instances of harassment, coupled with evidence of the employer’s efforts to conduct an internal investigation as to such reports, can satisfy the first of the two Faragher requirements. See Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d 1287, 1306 (11th Cir. 2007). Naturally, this is a substantial incentive for employers to implement anti-harassment policies and require anti-harassment training.

[38] Frank Dobbin & Alexandra Kalev, Why Diversity Programs Fail, Harvard Bus. Rev. (July-Aug. 2016), available at https://hbr.org/2016/07/why-diversity-programs-fail. In fact, some studies show that diversity training, when executed poorly, can actually activate bias in employees. Id.; Maggie Koerth, A Half-Day of Diversity Training Won’t Change Much for Starbucks, Five Thirty Eight (May 18, 2018), https://fivethirtyeight.com/features/a-half-day-of-diversity-training-wont-change-much-for-starbucks (noting study findings that “longer trainings are better than shorter ones, interactive trainings where people from different backgrounds work together are better than lectures”).

[39] For example, levels of discrimination against Black people in the workplace have remained largely unchanged since 1989. See Lincoln Quillian, et al., Meta-Analysis of Field Experiments Shows No Change in Racial Discrimination in Hiring Over Time, PNAS (Sept. 12, 2017), available at https://www.pnas.org/content/early/2017/09/11/1706255114.full. Among U.S. companies with over 100 employees, the percentage of Black men in management has increased by a scant 0.3% from 1985 through 2014, and the percentage of white women in management increased from 22% to 29% from 1985 through 2000, but since then their numbers have changed very little. Dobbin, Why Diversity Programs Fail (and as discouraging as these numbers look for white women, they are typically more discouraging for women of color.) In fact, backlash against the Me Too movement may have decreased the percentages of women in management; one study found that roughly 20% of men reported being more reluctant to hire women for certain jobs, or more reluctant to hire attractive women for any job, after Me Too than they were before Me Too. Tim Bower, The #MeToo Backlash, Harvard Bus. Rev. (Sept-Oct 2019), available at https://hbr.org/2019/09/the-metoo-backlash.

[40] Dobbin, Why Diversity Programs Fail.

[41] Aiko Bethea, What Black Employee Resource Groups Need Right Now, Harvard Bus. Rev. (June 29, 2020), available at https://hbr.org/2020/06/what-black-employee-resource-groups-need-right-now.

[42] Id.

[43] See, e.g., Moranski v. Gen. Motors Corp., 433 F.3d 537, 541 (7th Cir. 2005) (employer’s decision to deny employee’s request to form Christian affinity group did not violate Title VII; employer had blanket policy not to allow affinity groups based on religious or non-religious affiliation).

[44] Dobbin, Why Diversity Programs Fail.

[45] Id. (College recruitment programs aimed at recruiting underrepresented groups can increase the diversity of a company’s management ranks by 10% within five years.)

[46] Duffy v. Wolle, 123 F.3d 1026, 1038-39 (8th Cir. 1997), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011) (citing Shuford v. Alabama State Bd. of Educ., 897 F. Supp. 1535, 1553-54 (M.D. Ala. 1995) (“affirmative recruitment is a neutral measure”) (interpreting Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d 1548, 1571 (11th Cir. 1994), and Peightal v. Metropolitan Dade County, 26 F.3d 1545, 1557-58 (11th Cir. 1994)).

[47] See Dobbin, Why Diversity Programs Fail.

[48] Cathy Hinger & Diana Toman, Why the Mansfield Rule Matters, Womble Bond Dickinson (Mar. 17, 2020), https://www. womblebonddickinson.com/us/insights/articles-and-briefings/why-mansfield-rule-matters (describing the Mansfield Rule and its development at the 2016 Women in Law Hackathon).

[49] See Diversity Lab’s Mansfield Rule page, https://www.diversitylab.com/mansfield-rule-4-0.

[50] Jason Reid, Rethinking the Rooney Rule, Undefeated Today Newsletter (May 20, 2016), https://theundefeated.com/features/rethinking-the-rooney-rule/.

[51] Id.

[52] Matt Becker, NFL Announces Changes to Rooney Rule to Increase Diversity, SportingNews (May 20, 2020), https://www.sportingnews.com/au/nfl/news/nfl-announces-changes-to-rooney-rule-to-increase-diversity/1fgqji71lkbyi1mu88uj0pnr6r.

[53] Diversity Lab, Mansfield Rule, https://www.diversitylab.com/mansfield-rule-4-0.

[54] See, e.g., Kim Abreu, The Myriad Benefits of Diversity in the Workplace, Entrepreneur (Dec. 9, 2014), available at https://www.entrepreneur.com/article/240550.

Jacqueline M. Prats joined Trenam Law in 2015. She practices employment law and general business litigation and has represented companies in wage-and-hour, trade-secret, discrimination, and defamation matters. Prats graduated summa cum laude from Stetson College of Law, where she served as executive editor of Stetson Law Review.

This column is submitted on behalf of the Labor and Employment Law Section, Robyn Sue Hankins, chair, and Robert Eschenfelder, editor.