Diversity and legal implications

Kristy Crisp
Public Educator
City of Gastonia, North Carolina

Businesses spend millions every year to study it, marketing firms are called upon to promote it, and lawyers spend countless hours defending it. "It" is diversity, and it is changing the way employers look at business practices. In many areas, diversity is empowering companies, allowing them to broaden perspectives in this worldwide economy. Workplace diversity has become a tool that is used to recruit or produce the best in today's competitive environment. However, even with these benefits, the legal red tape involved with implementing diversity programs keeps lawyers and courts busy. Universities, governments, and private businesses are constantly looking at their diversity policies, such as affirmative action and Minority & Women's Business Enterprise programs, and staying up-to-date on the ever-changing legal regulations and requirements.

Diversity is generally defined as acknowledging, understanding, accepting, and valuing the differences among people with respect to age, class, ethnicity, gender, physical and mental ability, race, sexual orientation, religion, and public assistance status. In the workplace, diversity brings people of different backgrounds together and with them, different ideas and different strengths. Studies have shown that workplace diversity increases both employee creativity and productivity. Some companies and institutions have not moved as quickly as they could have. For this reason, local and federal lawmakers have been drawn into the picture.

Employment diversity laws began with the civil rights movement of the 1960s and continue to be created and challenged today. According to the Equal Employment Opportunity Commission (EEOC), there are four main statutes that prohibit discrimination by employers and government agencies: Civil Rights Act of 1964 (Title VII) prohibits discrimination based on race, color, sex, religion, and national origin; Age Discrimination in Employment Act of 1967 (ADEA) protects individuals 40 and over from age discrimination; Americans with Disabilities Act of 1990 (ADA) prohibits discrimination based on disability; and Equal Pay Act of 1963 prohibits sex discrimination in the payment of wages to men and women performing equal work. Additionally, there are state and federal laws, such as N.C.G.S. Sec. 143-129, designed to protect minority- and women-owned businesses from discrimination when bidding for government contracts.

Since their creation, Minority & Women's Business Enterprise (MWBE) programs have been challenged across the United States. Staying abreast of the appeals, rulings and current protocols can itself be overwhelming. While NC Senate Bill 914 requires local governments to utilize MWBE programs for procurement contracts, federal laws require the use of disparity studies to prove the statistical disparity between the number of minority business hires and those present in the community to do the work. It is no longer acceptable for cities to create a MWBE program merely requiring that a company employ a certain percentage of employees in order to receive a contract. In 2002, the City of Charlotte's MWBE program was challenged for this reason. North Carolina Civil Action No. 3:02CV4-MCK details the case brought forth by United Construction, Inc., a minority-owned construction company, against the City of Charlotte. United was denied a contract by the City of Charlotte because it did not fully comply with the City's MWBE requirements despite their minority ownership. Because of past rulings against municipal MWBE programs like the 1989 ruling against the City of Richmond, the City of Charlotte settled with United Construction and revamped its MWBE program. Today the City of Charlotte utilizes a MWBE program that focuses on promoting small business, and it is viewed as a voluntary goal-based program.

While MWBE programs cause mountains of confusion, nothing causes more controversy than affirmative action. Many universities have utilized affirmative action programs in order to promote diversity on college campuses. These programs have made headline news in recent years when several students challenged the University of Michigan's admissions policies for its undergraduate program and law school, resulting in a split decision by the United States Supreme Court. This has left universities to review their own current policies regarding affirmative action. Locally, an affirmative action bake sale on the campus of the University of North Carolina at Charlotte brought diverse groups together to talk about issues surrounding affirmative action and campus diversity. In this bake sale, the prices of baked goods differed for different minorities.

There are, however, simple and less controversial ways of promoting diversity. Many businesses and municipalities make sure that their internal diversity practices reflect those of the surrounding community. By statistically comparing the percentage of minority employees to those in the available workforce, an employer can gauge if and where deficiencies exist. When deficiencies are noticed in certain areas, an employer can then choose to review practices in job or contract advertising. By adding additional advertising in minority newsletters and other publications, employers can ensure that minority populations are finding out about offered opportunities.

Issues concerning workforce diversity will remain a hot topic for years to come. Even with the controversy, the benefits of creating both diverse business practices and a diverse workforce are clear, and employers must and should struggle to sort through the legal issues.

Kristy Crisp can be reached at (704) 869-1063 or at kristyc@cityofgastonia.com.

Works Cited:

Green, Kelli A., Mayra Lopez, Allen Wysocki, and Karl Kepner. "Diversity in the Workplace: Benefits, Challenges, and the Required Managerial Tools." University of Florida Cooperative Extension Service Institute of Food and Agricultural Sciences. 2002. Minority Graduate. 23 Jan. 2005. www.minoritygraduate.com/feature27.asp

White, Cynthia. "Legality of MWBD Programs." Presentation to North Carolina Municipality Attorneys. Charlotte City Attorney's Office. Charlotte, NC. 02 August 2002.

Kelly, Fred. "Mock bake sale ignites racial tension, anger." 11 February 2005. Charlotte Observer 21 February 2005. www.charlotte.com/mld/observer/news/local/10872295.htm

"Minority & Women's Business Enterprise." City of Charlotte and Mecklenburg County Official Website. 02 February 2005. www.charmeck.org/Departments/Human+Resources+County/Diversity+and+Minority+Affairs/MWBE/Policy+and+Objectives.htm

United Construction, Inc. vs. City of Charlotte. Civil Action No. 3:02CV4-MCK. U.S. District Court, Western District. Charlotte, NC. 28 February 2002.

United States Equal Employment Opportunity Commission. Employer EEO Responsibilities Technical Assistance Program. Washington: January 2001.