Following the Supreme Court’s recent affirmative action decision, legal press publications have reported about complaints and enforcement threats sent to law firms based on their diversity initiatives. In some cases, these complaints have alleged that the firms set aside internships or other opportunities for minority law students. In the wake of these complaints, some law firms modified their diversity programs while others concluded that their existing measures comply with legal requirements.

While the Supreme Court did not directly address private business’ hiring practices, publicity generated as a result of the decision should remind employers of the need to be cognizant of potential reverse discrimination claims. A reverse discrimination claim is one made by a person who is not generally considered part of a protected classification typically subject to discrimination. Most federal and state civil right laws prohibit discrimination based on a protected classification, not just discrimination against a traditionally disadvantaged part of that classification.

Employers should avoid advertising for diversity programs that make race, age, sex or another protected class a condition of hiring. For example, businesses should not advertise for recent college graduates because this may be interpreted as disfavoring older applicants. In the end, the employer should hire the best qualified candidate for the position. Diversity programs should focus on broadening the field of qualified minority candidates and mentoring those who are hired. However, individual employment decisions should not be based on an applicant’s protected status, either as a positive or negative factor.

Certain interest groups are likely to continue scrutinizing corporate hiring practices, looking for evidence of reverse discrimination. Employers should structure and communicate their diversity efforts to avoid claims that they violated applicable legal requirements.

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