Title VII and Diversity

Source: Kingsley R. Browne, Wayne State University Law School Research Paper No. 2014-07, 2014

From the abstract:
It is widely accepted in today’s corporate world that diversity is essential to the effective functioning of the workplace. In pursuit of that belief, many corporations grant racial preferences in hiring and promotion and insist on diversity among suppliers of goods and services. Despite the ubiquity of such practices, little case law exists under Title VII addressing the use of preferences outside the remedial context and virtually none exists that would support them. The statutory language itself seems to forbid any use of race in employment decisions. Although the Supreme Court has decided two cases upholding the use of preferences under Title VII, those cases are firmly rooted in a remedial rationale.

If current affirmative-action doctrine does not justify race and sex preferences, other statutory grounds might exist that would do so, but it seems unlikely. The “bona fide occupational qualification” (BFOQ) defense is a very narrow one, and it does not apply to race at all. Although early lower-court decisions suggested that employers might rely on a “business necessity” defense, that route has now been foreclosed both by Supreme Court precedent and statutory amendment. Some supporters of race and sex preferences now pin their hopes on the Supreme Court’s willingness to extend its rationale in Grutter v. Bollinger to the workplace, but the limitations of that case mean that those hopes are unlikely to bear fruit.

Even if an exception analogous to the BFOQ defense or the compelling interest defense were to be recognized, it would likely be unavailing to most employers. Both of those defenses demand that the defendant supply a powerful factual basis for its decision to rely on otherwise impermissible grounds. Yet, the empirical evidence supporting the “business case for diversity” is both weak and equivocal. Absent the virtually complete deference the Grutter Court gave to the defendant in that case, the typical employer could not come close to satisfying its burden.