As employers try to respond to efforts to address racism in all parts of our society, we are seeing, maybe for the first time, more willingness to take steps to address adversity that are more than superficial. In the past, employers have added equal employment opportunity (EEO) statements to application forms, created policies on anti-discrimination, and conducted training related to discrimination and harassment. Disturbingly, the percentage of people of color in management and professional positions has still not increased to the level we should expect, given the composition of the general population.

As long ago as 1971, in a case related to the requirement for a high school diploma for some positions, the U.S. Supreme Court decided in Griggs v. Duke Power, 401 U.S. 424 (1971), that even if a requirement was neutral on its face, it could still be deemed to be discriminatory if it had a disparate impact on a protected class and it did not pertain to the applicants' ability to perform the job.

Fifty years later, many employers are now becoming part of the "anti-racism" movement – an effort to actively address ways in which employers may be unintentionally putting obstacles in the career paths of people of color. Employers are realizing that it hasn't been enough to just react to discrimination or harassment – they must take proactive steps to prevent it. For example, if employers advertise job vacancies, but create minimum qualifications that are not directly related to success on the job, they have created a virtual "brick wall" through which many candidates cannot pass.

Today, we still see vestiges of the situation that resulted in the Griggs case. It is not uncommon to see a vacancy posted that requires a bachelor's degree but doesn't specify the field in which the degree must be obtained. Furthermore, some job descriptions state a bachelor's degree is required but the current successful incumbent does not possess a degree. Those who see the posting will note the degree requirement and believe they will not be considered because they do not have a degree, not realizing that the degree requirement itself is not a valid one.

Employers must tie qualifications to performance

Here is where the job description enters the picture. There are many good HR and legal reasons to have a job description for each position in the organization. They assist management in compensation decisions, in reinforcing employment-at-will, and in clarifying the physical (and return-to-work) requirements of the job. They are also valuable for describing the specific qualifications that each job demands to perform it successfully. What the courts and the Equal Employment Opportunity Commission (EEOC) are increasingly saying is that employers must tie these minimum qualifications to successful job performance.

It is not appropriate to require a high school diploma when there are no duties that specifically relate to the acquisition of a high school diploma. And it is never the case that a generic requirement for a bachelor's degree can be tied to job performance. Only specific degree requirements can show a link between the material learned and the duties performed.

Steps employers can take to make sure they aren't building false barriers to employment

So, what should employers do? Employers can take simple steps to audit their own practices and make sure that they are not building false barriers to employment, especially employment in the upper levels of their organization.

  • High school diploma requirements, if not tied to specific job skills, can be inappropriate barriers to employment, and should usually be eliminated and replaced with more specific skill requirements.
  • Requirements for a generic degree, whether it is a bachelor's or a master's degree, should be eliminated and replaced with specific skills requirements.
  • Requirements for a specific degree should be examined carefully. For example, it is logical to require a degree in accounting for an accountant position. However, if an associate's degree will suffice, then that should be the minimum requirement, not the four-year degree.
  • Decision-makers who reject a person of color, especially in the final stages of a selection process, should be asked to provide a specific, job-related reason (based on the job description) why the candidate's qualifications were not as relevant as the candidate they recommended.

These are all proactive steps, but none of them require a large financial investment or a significant amount of time. However, for any organization that states a commitment to anti-racism, they provide concrete steps toward a more diverse, equitable and inclusive workforce.

Originally published in Denver Business Journal

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