Over the course of 2020, numerous large, publicly traded corporations have come under scrutiny and criticism for their lack of diversity among senior management. As a result, some of these companies have announced their intention to significantly increase the presence of women and minorities in these positions. In recent weeks however, several government agencies have announced reviews to determine whether these initiatives constitute prohibited reverse discrimination under federal civil rights laws.

For example, last week, Microsoft responded to questions raised by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs. The company recently pledged to double the number of Black and African American senior managers by 2025. Microsoft responded that its initiative meets all federal and state anti-discrimination requirements. The company acknowledged that applicants will not be hired or promoted on the basis of race. But it reaffirmed its intent to meet placement goals by broadening the available pipeline of qualified minority applicants, diversifying work locations and sources for recruitment such as colleges and universities, and enhancing training and mentoring opportunities for employees once hired, in order to allow them to progress within the company.

These initiatives constitute diversity program elements that have generally been found not to violate anti-discrimination laws. While individual hiring decisions must be made without regard to race, employers can take steps to expand the pool of qualified minority applicants for such jobs. The Equal Employment Opportunity Commission also announced similar reviews of corporate hiring pledges. Companies that decide to make such public commitments should take care to establish a plan describing the specific legal measures that will be used to meet such goals.