I spent some time last month working with a nonprofit organization that has been developing their Equity, Diversity and Inclusion (EDI) plan. In light of the social justice issues that have gained prominence and public attention this year, the organization is seeking to improve their operations, mission and hiring practices to ensure that they are not contributing to systemic racism. Quite simply, they are trying to “do better.” It is important work that needs to be done.

I realize the idea of systemic racism has become contentious for some, so before I get to my main point, I would like to take a moment to define what that term means and what it does not mean. Systemic racism, also called institutional or structural racism, is the processes, systems and structures that create disadvantages for Black, Indigenous, or People of Color (BIPOC). Here are some examples to illustrate what this means. Statistically in the U.S., unemployment is about two times higher among Blacks than Whites. This holds true no matter what is going on in the economy as a whole and even when we compare similarly-qualified groups (college graduates of different races, for instance). Similarly, when you are applying for a job, research has shown that you are 50% more likely to get an interview with a “white sounding” name versus a “black sounding” name. Again, this holds true when all other factors (like qualifications) are held constant. This does not mean that those engaged in the processes have any particular racial motivation; in fact, people may not even be conscious of race in their decision-making, but the decisions themselves perpetuate racial inequality. There may be a perfectly rational reason or incentive to make these decisions, but the result is the perpetuation of disadvantage.

So, knowing this, it is not surprising that many businesses and nonprofit organizations are seeking to address these issues by intentionally bringing them into focus in their planning. In fact, addressing systemic racism isn’t anything new from a policy perspective — we have been grappling with it since the 1960s when Kennedy introduced the idea of affirmative action in an executive order. Since then, the implementation of affirmative action has taken place in the courts rather than legislatures. In other words, as a policy, it has been refined through the legal system as opposed to the development of new laws.

Employment discrimination laws were introduced in the Civil Rights Act of 1964 through Title VII. The 1976 Supreme Court case, McDonald v. Santa Fe Trail Transportation Co., ruled that “discriminatory preference for any [racial] group, minority or majority” violates Title VII (employment discrimination). This extends to favoring minority employees over White employees as well. Throughout the 1960s and 70s, educational institutions, in particular, began using minority quota systems to improve minority admissions into schools. This was ruled illegal by the Supreme Court in 1978, but consistent and clear rulings on affirmative action have not been the norm from that point on. Two cases in 2003 and 2016 upheld the idea that race can be a consideration in hiring and admissions decisions, but designating spots or quotas is not. This is about the extent of the guidance on affirmative action and diversity/inclusion in hiring.

Interestingly, in talking with the nonprofit I was working with, the approach they are taking in their EDI is to include quotas in their hiring to ensure that they have adequate BIPOC representation in the organization. They are hoping to create more diversity in the organization through inclusive hiring practices (necessary and admirable), but the tool they used throughout the plan was quotas (X% of people hired in this area will be BIPOC, for instance).

My warning to them, and to other CEOs and executive directors, is this: Do not rush blindly into anti-discrimination initiatives that may result in violating anti-discrimination laws. While the work of affirmative action must happen to address systemic racism, organizations also need to be wary of violating existing law.

Now, if an organization or individual wishes to challenge these laws, they certainly could by taking cases to the court system. Otherwise, other methods will need to be employed as we navigate trying to improve systemic racism in our businesses and communities. The U.S. Equal Employment Opportunity Commission (EEOC) along with several organizational success stories offer some good guidance in this regard. I’ll take up the topic of effective, legal, affirmative actions in my next column and I hope it will be useful in both illuminating the legal landscape on this issue and helping to give organizations some ideas on how to “do better.”

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