©2011 Duane Morris LLP. All Rights Reserved. Duane Morris is a registered service mark of Duane Morris LLP. Duane Morris – Firm and Affiliate Offices | New York | London | Singapore | Los Angeles | Chicago | Houston | Hanoi | Philadelphia | San Diego | San Francisco | Baltimore | Boston | Washington, D.C. Las Vegas | Atlanta | Miami | Pittsburgh | Newark | Boca Raton | Wilmington | Cherry Hill | Princeton | Lake Tahoe | Ho Chi Minh City | Duane Morris LLP – A Delaware limited liability partnership Attracting and Promoting Diverse Talent* presented by Jonathan A. Segal, Esq. * No statements made in this seminar or in the PowerPoint or other materials should be construed as legal advice or as pertaining to specific factual situations. Further, participation in this seminar or any question and answer (during or after the seminar) does not establish an attorney-client relationship between Duane Morris LLP and any participant (or his or her employer). DM2/ prepared for Philadelphia Area Association of Healthcare Recruiters (PAAHCR)

Part I: Title VII and Diversity 1

A.Legal Background 1.Title VII prohibits discrimination on account of sex, race, color, national origin and religion. 2.While Title VII was enacted primarily to protect women and racial and ethnic minorities, it also protects men and people who are white. 3.How does Title VII apply to voluntary affirmative action by an employer to benefit women and minorities? 2

B.Two Supreme Court Cases on Affirmative Action in Education in Gratz v. Bollinger, 123 S.Ct (2003): University of Michigan Undergraduate 2.Grutter v. Bollinger, 123 S.Ct (2003): University of Michigan Law School 3

C.Undergraduate Affirmative Action Plan points = automatic admission 2.20 points for membership in certain minority groups 3.Up to 20 points for certain race-neutral diversity factors 4

D.Law School Affirmative Action Plan 1.No points 2.Race was but one factor without any specified weight 3.Other race-neutral factors were considered too (e.g., socioeconomic status) 5

E.Plaintiffs’ Challenge 1.Violation of Equal Protection Clause of the 14th Amendment 2.Constitutional analysis: a.Is there a compelling state interest? b.Are the means narrowly tailored to achieve that interest? 6

F.Summary of Michigan Decisions 1.Six justices: “student body diversity” is a compelling state interest 2.Question then became: is the program narrowly tailored? a.6 justices struck down the undergraduate program – point system seen as too much like a quota b.5 justices (including O’Connor) upheld the law school program – holistic, individualized assessment in which race is a “plus” 7

F.Summary of Michigan Decisions 3.With Justice Alito replacing Justice O’Connor, it is far from clear that the Supreme Court would come out same way today 8

G.Affirmative Action in Employment 1.Entirely different and more restrictive legal analysis applies in employment cases 9

G.Affirmative Action in Employment 2.Supreme Court has upheld voluntary affirmative action in employment only if: a.Remedial purpose (to be discussed) b.Narrowly tailored i.No quotas or set asides ii.Race or gender only one factor in holistic approach iii.Limited time frame 10

G.Affirmative Action in Employment 3.What may be legitimate remedial purpose? a.Admission of prior discrimination b.“Manifest imbalance” in traditionally segregated job categories 11

H.Hot Litigation Issue 1.Can an employer consider diversity in the absence of remedial purpose? 12

I.Taxman v. Board of Education of Township of Piscataway, 91 F.3d 1547 (3d Cir. 1996) 1.School District had affirmative action plan in which white teachers were laid off ahead of minority teachers where their qualifications were equal 2.While the court found employer’s purpose of having a “culturally-diverse workforce” laudable, it still found it unlawful 3.Appellate court held “no congressional recognition of diversity as a Title VII objective requiring accommodation” in the absence of a remedial purpose 13

J.Schurr v. Resorts International Hotels, Inc. 196 F.3d 486 (3d Cir. 1999) 1.Employer selected African American candidate over equally qualified white candidate 2.Employer admitted that race was determining factor but relied upon its affirmative action plan as a defense 3.Ruling for the plaintiff and relying on Taxman, the court held that, unless a voluntary affirmative action plan has a remedial purpose, it cannot be said to mirror the purposes of Title VII 14

K.EEOC Compliance Manual Chapter 15 (Race and Color) April 19, EEOC encourages diversity efforts, but cautions employers to be careful to “avoid the potential for running afoul of the law,” citing, among other cases, Taxman 15

L.Title VII Restrictions 1.Employer cannot set aside or reserve a position for a woman or minority 2.Employer most probably cannot consider race, ethnicity or gender as a “plus” in decision-making (unless for remedial purpose) 16

M.What Can We Do? 1.Increase the diversity of the applicant pool 2.Minimize unconscious bias in the screening and selection process 3.Value in decision-making the non-EEO aspects of diversity, to the extent job-related (e.g., experience, perspective and contacts) 4.Employer could give plus to “disabled,” vets or older employees (in PA) 17

Part II: Maximizing Diversity Consistent with Title VII 18

A.Define Diversity Broadly 1.EEO (such as age, gender, national origin and race) 2.Non-EEO (such as diversity in experience, perspective and contacts) 19

B.Understanding the Mission Benefits of Diversity Relative to Employees 1.Attracting the best and the brightest from diverse applicant pools 2.Reflecting the diversity of the patients and communities we serve 3.Better and more innovative solutions resulting from diversity of experiences, perspectives and ideas 20

C.Setting the Criteria 1.Be careful of setting too high the number of years “traditional” experience – potential adverse impact on women and people of color 2.Be careful of caps too – potential adverse impact on older workers 21

D.Internal Postings 1.Message of inclusion 2.Making and documenting legitimate exceptions 3.Caution: risk of posting when decision effectively made 22

E.External Recruiting 1.Word of mouth a.Benefit b.Limitation 23

E.External Recruiting 2.General recruiting a.Can be same time as internal posting b.Diversifying general sources 24

E.External Recruiting 3.Targeted recruiting a.Supplements, not supplants, general recruiting b.Should be at same time as general recruiting 25

E.External Recruiting 4.Third party recruiters a.Identity – diversity in recruiters b.Instruction – diverse pool of qualified applicants 26

F.Screening Applicants/Resumes 1.Screen based on legitimate factors 2.Be a ware of unconscious bias in screening process 27

G.Impermissible Interview Questions 1.Examples a.EEO status b.Family status c.Personal 28

G.Impermissible Interview Questions 2.Scope a.Formal interviewing b.Informal follow-up c.Important to avoid not only legal risk but also business risk of pushing away talent by asking inappropriate question 29

H.Permissible Interview Questions 1.Examples a.Prior experience b.Current skills c.Job requirements d.Situational/behavioral questions 30

H.Permissible Interview Questions 2.Benefits of starting with uniform list of questions a.Legal – avoid unconscious bias in selection of questions b.Business – demonstrates commitment to consistency (so individual does not feel targeted when asked tough questions) 31

I.Diversity Considerations in Decision Making 1.Do not make decisions based on EEO factors 2.Value in decision-making the non-EEO aspects of diversity, to the extent job-related (e.g., experience, perspective and contacts) 32

J.Diversity/EEO Danger Zones – Selection Process 1.Personal comfort level – “like me” bias 2.Bad cultural fit (without foundation) 3.Stereotyping – negative or “positive” 4.Mis-measure of different communication/leadership styles 5.Double standard on confidence/assertiveness 33

K.Diversity/EEO Danger Zones – Sealing the Deal 1.Nomenclature: “diverse candidate” 2.EEO matching in follow-up 3.Overselling inclusion to candidate 34

L.Social Media 1.Issue: checking social media sites as part of hiring process 2.Concern: access to information about protected status of applicant: a.Race b.Disability c.Age 35

L.Social Media 3.Significance: a.Potentially dangerous for employers to be aware of this information b.Knowledge may be seen as basis for adverse employment action 36

L.Social Media 4.Decision point: a.Do you engage in social media background checks? b.Is general prohibition truly enforceable? 37

L.Social Media 5.Recommendations (if engaged in social media checks): a.Review only after interview candidate and only if interest in candidate b.Be consistent – danger in selective checks c.Document what is considered (and by implication what is not) 38

L.Social Media 5.Recommendations (if engaged in social media checks): (continued) d.Verify information as necessary (if from third party site as opposed to candidate’s own site) e.HR should perform function (as integrated part of background check process) f.Prohibit hiring managers from performing function independently 39

M.Criminal background checks 1.Conduct to the extent legally required (e.g, child abuse) 2.Where discretionary: a.Federal law (Title VII) (i)Careful of adverse impact (ii)Per se exclusions may result in class actions b.PA law: (i)Can consider convictions only, not arrests (ii)Convictions must relate to suitability for job at issue (iii)Must provide applicant with notice, if decision based, in whole or in part, on conviction 40

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