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Proceed with Caution: Voluntary Diversity Efforts Must Be Undertaken with Care to Limit Litigation Risk for Employers

Labor and Employment Law

Employers across the country are voluntarily implementing plans to promote diversity within their workforce, especially in management positions. Wells Fargo, Microsoft, and Amazon are just a few of the companies whose efforts have recently made headlines. And businesses are using their influence to encourage diversity in their other relationships, too. In 2018, the CEO of BlackRock, which manages trillions in investments and is one of the most influential shareholders of the world’s largest companies, made headlines when he issued an open letter to other CEOs indicating that companies that failed to demonstrate how they advance diversity and “make[] a positive contribution to society” would risk losing the support of BlackRock.[1]

Such efforts, however, are meeting some resistance, with courts and others raising questions about their legality. On April 15, 2021, the Florida Supreme Court sua sponte issued an opinion amending Rule 6-10.3(d) of the Rules Regulating The Florida Bar.[2] The opinion rejected a policy setting diversity requirements for faculty at Business Law Section-sponsored CLEs based on “race, ethnicity, gender, sexual orientation, gender identity, disability, and multiculturalism.”[3] In rejecting the policy, the court stated that “quotas based on characteristics like the ones in this policy are antithetical to basic American principles of nondiscrimination.”[4] In early 2021, Coca-Cola announced diversity benchmarks for its outside counsel, with a statement that outside counsel who failed to meet the diverse staffing metrics would forfeit 30% of their fees, but the plan’s implementation was reportedly paused, the recently hired general counsel who initiated the plan replaced, and the company received a demand letter claiming the plan was unlawful.[5]

With so many industry leaders publicizing their efforts to promote diversity, others may be tempted to follow suit. The response by courts and stakeholders, however, suggests proceeding with caution with any such effort. The line between what courts consider permissible diversity efforts and unlawful discrimination can be difficult to discern, and getting it wrong can lead to liability. Businesses voluntarily taking action should, therefore, know the legal risks, common pitfalls, and implications of diversity efforts so they can craft plans within the bounds of the law. Well-intentioned missteps can backfire and invite agency investigation, prompt lawsuits, and undermine the diversity programs themselves.

Introduction to Voluntary Employer Action

Employers adopt plans to improve workforce diversity for a variety of reasons. Some do so in response to a court order after a finding of discrimination,[6] others do so pursuant to government regulation or as a negotiated remedy in a consent decree or settlement agreement,[7] and more and more are announcing plans to do so voluntarily, without any court or agency intervention. This article focuses on the last category — voluntary actions — and in particular, two types of voluntary employer actions: diversity initiatives and what the Equal Employment Opportunity Commission (EEOC) calls “affirmative action plans.”

Diversity initiatives and affirmative action plans “are related concepts, but the terms have different origins and legal connotations.”[8] On one hand, diversity initiatives are designed to “draw talent and ideas from all segments of the population” by expanding the pool of qualified individuals considered for a particular position. They do not dictate selection procedures or processes, and instead merely broaden the reach of employers to consider more diverse candidates. Such initiatives do not fall within the scope of anti-discrimination laws because they merely help employers consider additional, more diverse candidates. For example, an employer implementing a diversity initiative may increase its recruiting efforts at historically black colleges and universities (HBCU) to attract more candidates of color. This expanded-recruitment effort functions only to bring more candidates into consideration.

On the other hand, affirmative action plans aim “to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity” by permitting employers to expressly favor a particular group in selection decisions when certain prerequisites are met.[9] Under a valid affirmative action plan, for example, an employer may go beyond simply expanding the qualified candidate pool by increasing HBCU recruiting, and reserve a spot for a graduating HBCU student of color in its incoming employee class.

The law — specifically Title VII of the Civil Rights Act of 1964 — addresses these two concepts differently. According to courts and EEOC, “Title VII permits diversity [initiatives] designed to open up opportunities to everyone,”[10] but affirmative action plans run afoul of Title VII unless certain prerequisites are met and the plan is implemented in a particular way. Although it may initially appear simple to distinguish diversity initiatives and affirmative action plans, the line between a selection procedure regulated by Title VII can be difficult to discern.

Title VII: The Legal Landscape

Title VII prohibits discriminatory employment practices on the basis “of [an] individual’s race, color, religion, sex, or national origin.”[11] Shortly after Title VII’s passage, the Supreme Court declared that its purpose “is plain from the language of the statute[:]…to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.”[12] Legislative history is consistent with this interpretation, citing testimony that, at the time Title VII was considered, “discrimination in employment [was] overwhelming,”[13] and that the Civil Rights Act could help remedy pervasive unemployment, underemployment, and income disparities experienced by Black people, which were categorized as the “effects” of “severe inequality.”[14]

Title VII, thus, prohibits employers from relying on protected characteristics like race or sex in employment-selection decisions. Beyond obvious selection decisions such as hiring and promoting, various “selection procedures” are also actionable under Title VII.[15] Courts, for example, have permitted Title VII claims based solely on an employer’s decision on who to select for an interview.[16] Moreover, adding a person to a selection pool for consideration “when considered with other factors in a case, can constitute circumstantial evidence of” a racially discriminatory hiring decision.[17]

What constitutes actionable selection under Title VII is, therefore, broad. While the Supreme Court made clear in Griggs v. Duke Power Co., 401 U.S. 424, 429-30 (1971), that Title VII was designed to remove barriers to employment opportunities that had historically “favored an identifiable group of white employees,”[18] the statute protects any person from being discriminated against on the basis of the enumerated protected characteristics in Title VII.[19]

In response to Title VII’s passage, employers hired compliance officers, established affirmative action plans, and developed new methods for screening job applicants, evaluating employee performance, and allocating work.[20] Those voluntary efforts were understood to be designed to advance Title VII’s purpose of achieving equality in the workplace for women and people of color.[21] But because Title VII prohibits decisions that are based on a protected characteristic, the voluntary efforts exposed employers to litigation risks. Specifically, they presented a risk of white job applicants and employees asserting that the employers were making decisions based on race.

Therefore, in 1979, EEOC promulgated guidelines to help employers who sought to promote equal employment opportunity by implementing voluntary affirmative action plans.[22] EEOC noted that uncertainty over the legality of race- and sex-conscious decisions taken pursuant to affirmative action plans “threatens the accomplishment of the clear congressional intent to encourage voluntary affirmative action.”[23]

EEOC stated that Congress did not intend to expose employers who implement voluntary affirmative action plans “to charges that they are violating the very statute they are seeking to implement.”[24] In EEOC’s view,“[s]uch a result would immobilize or reduce the efforts of many who would otherwise take action to improve the opportunities of minorities and women without litigation, thus frustrating the [c]ongressional intent to encourage voluntary action and increasing the prospect of Title VII litigation.”[25]

Finding that voluntary efforts to promote diversity must be encouraged, EEOC identified three circumstances under which an employer may undertake such efforts: 1) Where an analysis reveals that existing or contemplated employment practices are likely to cause an actual or potential adverse impact; 2) where a comparison between the employer’s workforce and the appropriate labor pool reveals that diversity efforts are necessary to correct the effects of prior discriminatory practices; and 3) where a limited labor pool of qualified people of color and women exists due to historical restrictions by employers, labor organizations, or others.[26]

While EEOC’s guidance is useful, Supreme Court jurisprudence has largely shaped the law on voluntary affirmative action plans. In the landmark case, United Steelworkers of America v. Weber, 443 U.S. 193 (1979), the Court addressed a voluntary plan designed to eliminate racial imbalances in a company’s craft workforce. In the company plant at issue, only those with prior craft experience were eligible for hire as craftworkers. But because Black people had historically been excluded from craft unions, only 1.83% (five out of 273) of the craftworkers at the plant were Black, even though the local workforce was approximately 39% Black. The company, therefore, reserved 50% of its craft-training program openings for Black employees, a practice that the plan provided would continue until they represented a percentage of the company’s workforce that was proportionate with the percentage of Black workers in the local labor force.[27] The Court upheld the voluntary program, finding that the plan was consistent with Title VII’s objective of “break[ing] down old patterns of racial segregation and hierarchy.”

In doing so, the Court concluded that Congress did not intend “to prohibit the private sector from taking effective steps to accomplish the goal that Congress designed Title VII to achieve.”[28] The Court recognized that “[i]t would be ironic indeed if a law triggered by a [n]ation’s concern over centuries of racial injustice and intended to improve the lot of those who had been excluded from the American dream for so long…constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy.”[29]

The Court later extended Weber to gender-based preferences in Johnson v. Transportation Agency, 480 U.S. 616 (1987). There, the employer implemented a voluntary affirmative action plan to address the significant underrepresentation of women in certain job categories. Although women constituted 36.4% of the area labor market, they were significantly underrepresented in several positions: agency officials and administrators (7.1%), professionals (8.6%), technicians (9.7%), service and maintenance workers (22%), and skilled craft worker (0% — with the skilled craft worker positions at issue). As it had in Weber, the Court concluded that the voluntary plan was “fully consistent with Title VII, for it embodies the contribution that voluntary employer action can make in eliminating the vestiges of discrimination in the workplace.”[30]

But the Court’s holdings in Weber and Johnson did not grant employers carte blanche to implement voluntary affirmative action plans however they saw fit. Instead, the cases created numerous preconditions for adopting, implementing, and maintaining voluntary plans. Under Weber and Johnson, a voluntary affirmative action plan is permissible if 1) it is designed to eliminate a manifest imbalance in traditionally segregated job categories (i.e., it is remedial); 2) it does not unnecessarily trammel the interests of non-diverse candidates; and 3) it is a temporary measure intended to attain, not maintain, a balanced workforce.[31]

In the years since Weber and Johnson, courts have applied those factors. For example, in Higgins v. City of Vallejo, 823 F.2d 351, 356-58 (9th Cir. 1987), the Ninth Circuit applied the factors and upheld a city’s voluntary plan to achieve a racially balanced workforce among its firefighters. Taking all of the factors into account, the court determined that the city’s “affirmative action plan was in full conformity with Title VII.”[32]

Pursuant to the city’s plan, the city manager made a race-conscious decision and selected a Black firefighter for promotion from the top three promotion applicants. The plan satisfied the first Weber prong, the court held, because it was designed to eliminate a manifest racial imbalance. The court noted that in an 11-year period, only five of the 47 firefighters hired by the city were Black.[33] Of the 36 individuals promoted to fire captain during that time, only one was Black.[34] Next, the court determined that the city’s plan did not unnecessarily trammel the rights of white employees. The aggrieved white firefighter competed against all other qualified applicants, and had no absolute entitlement to promotion because the city manager had the discretion to choose among the top three candidates.[35] While “[t]hose top three applicants each had some hope of promotion, [] none had a legitimate expectation of promotion.”[36] Finally, the court determined that the city’s plan was a temporary program designed to attain rather than maintain racial balance.[37]

Diversity Efforts Today

Employers’ desire to advance the goal of increasing diversity and representation of historically underrepresented groups has increased in recent years. Not only do more and more employers announce publicly that they value a diverse workforce, many industry leaders are using their influence to demand increased diversity efforts from their business partners, putting more pressure on employers to prioritize diversity efforts. A number of law firms and corporate legal departments, for example, have implemented the “Mansfield Rule,” which requires that at least 30% of candidates considered for leadership and governance roles be women or people of color.[38]

But the call to action transcends the legal profession. In response to pressure from pension-fund shareholders, Amazon, for example, adopted a version of the “Rooney Rule”[39] for board of directors candidates.[40]

The Problem: Courts’ Interpretation of Title VII Creates Litigation Risk for Employers

Against this backdrop, many employers may be considering or already are implementing voluntary measures to increase leadership and employment opportunities for women and people of color. But despite guidance from EEOC and Weber and its progeny, the legal landscape is precarious. Given courts’ interpretation of Title VII, such efforts may still expose employers to litigation risk.[41] For example, a former in-house lawyer for Electrolux recently sued the company alleging that he was passed over for promotion because of the company’s discriminatory preference to hire women as part of a push for diversity.[42]

Although it has been decades since Weber and Johnson were decided, ambiguity about their protections, particularly with respect to voluntary affirmative action plans, remains; and their application can be inconsistent. Such uncertainty and risk are occasionally overlooked, however, leading to overconfidence in the state of the law. Countless opinion pieces highlight employers’ voluntary diversity initiatives without acknowledging the difference between a mere diversity initiative and a voluntary affirmative action plan, and the sometimes difficult line to draw between the two. Those opinion pieces, therefore, occasionally gloss over the litigation risks of such initiatives, or, perhaps more importantly, the predicates necessary to undertake an affirmative action plan in particular. Because many courts interpret Title VII as demanding race- and gender-neutral policies and practices, diversity initiatives that are touted in the press as models for other businesses may in fact not pass Title VII muster.

This tendency to downplay the litigation risks that may accompany an employer’s voluntary efforts without meeting the requirements of Title VII is ultimately a disservice to employers seeking to engage in such efforts in good faith. Diversity initiatives and voluntary affirmative action plans are important tools for employers who seek to increase opportunities for diverse candidates or address a manifest imbalance in their workforce. The Supreme Court has declared in the education context that “major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.”[43] But without a full understanding of the potential pitfalls of implementing such a program, employers cannot make truly informed decisions about how best to do it — they cannot develop programs that will withstand legal scrutiny and achieve their goal of a diverse workforce. Practitioners, thus, do their clients no favors by overstating the protections offered by Weber and Johnson or by downplaying the litigation risks inherent in haphazardly implementing a voluntary affirmative action plan.

Frost v. Chrysler, 826 F. Supp. 1290 (W.D. Okla. 1993), is one example of a cautionary tale. There, Chrysler implemented a program that provided advantageous financing for certain dealerships, reserving the best opportunities for Black investors by offering them a right of first refusal in the financing program. Frost, a white woman who was denied a dealership in favor of a Black man, sued. The court held that despite its efforts to demonstrate a manifest imbalance in a traditionally segregated job category, Chrysler relied on the wrong data to justify its financing program preference.[44] Although Chrysler presented evidence of the percentage of Black-owned Chrysler dealerships compared to Black people in the general population, the correct comparison, according to the court, was more tailored to the financing program at issue: between Black-owned Chrysler dealerships and Black people in the population who were qualified to become Chrysler dealers but who lacked adequate financing.[45] Accordingly, although Chrysler took steps to implement a compliant affirmative action plan and demonstrate a manifest racial imbalance, its plan was ultimately declared discriminatory, it faced liability, and its efforts to improve the representation of Black-owned Chrysler dealerships were dealt a setback.[46]

Frost demonstrates the risk that many employers grapple with when considering implementing a race- or gender-conscious affirmative action plan; even if a plan is thoughtfully constructed, a court may still disagree. Indeed, the 11th Circuit has recognized that there “is no precise formula for determining whether an affirmative action plan unnecessarily trammels the rights of non-beneficiaries,” creating a somewhat amorphous standard.[47] Moreover, even with the Weber defense, an employer will still expend significant resources if its voluntary affirmative action plan is challenged. The employer will have to demonstrate that its plan is truly compliant — that it is remedial, non-trammeling, temporary, and also that the employer followed its plan. An employer relying upon Weber to defend its plan may need to take its defense to trial, enlisting experts, preparing and defending statistical analyses, and undertaking significant discovery efforts along the way, which likely include depositions of top executives.

Navigating the Legal Landscape

Affirmative Action Plans — If an employer wishes to adopt a plan that expressly favors an underrepresented group in a selection decision, its plan must meet the Weber three-part test. But conforming a plan to Weber can be difficult for an employer, especially given that, as the old adage goes, “the first step is admitting that you have a problem.” Under Weber and its progeny, employers wishing to adopt a compliant voluntary affirmative action plan must first acknowledge a manifest racial imbalance in their workforce. Although Weber was careful to explain that “[a] manifest imbalance need not be such that it would support a prima facie case against the employer,”[48] it is an acknowledgment that could give pause to an employer otherwise enthusiastic about pursuing voluntary affirmative action. But failure to acknowledge an imbalance can defeat the effort altogether.

Schurr v. Resorts International Hotel,196 F.3d 486, 497 (3d Cir. 1999), is instructive. There, a white job candidate sued a casino after the casino awarded a position to a Black candidate pursuant to an affirmative action plan. But the casino’s “plan was not put in place as a result of any manifest imbalance or in response to a finding that any relevant job category was or ever had been affected by segregation.”[49] The casino’s plan, the Third Circuit held, was, therefore, “invalid under the first prong of Weber and c[ould] [not] form the basis for deviating from the antidiscrimination mandate of Title VII.”[50]

Yet employers may understandably be hesitant to embrace a defense that requires identifying and collecting data on racial imbalance, fearing that such data will invite agency investigation and lawsuits, and be used against it. Frank v. Xerox Corp., 347 F.3d 130 (5th Cir. 2003), underscores the validity of those concerns. The case involved Xerox’s Balanced Workforce Initiative (BWF), a program created for “the stated purpose of insuring that all racial and gender groups were proportionately represented at all levels of the company.”[51] In developing the BWF, Xerox performed studies of its workforce in an effort to satisfy Weber, and it produced reports showing actual and desired representation in each office.[52] Those reports indicated that Black workers were overrepresented in the Houston market, and the manager of the Houston market then “identified explicit racial goals for each job and grade level,” designed to employ more white workers in the Houston market, including evaluating managers on meeting those objectives or “goals.”[53] Black workers sued under disparate treatment and other theories, citing the BWF as evidence. The Fifth Circuit not only found that the BWF program supported a claim of disparate treatment discrimination, but reasoned that it was direct evidence of discrimination: “[T]he existence of the BWF program is sufficient to constitute direct evidence of a form or practice of discrimination.”[54] It continued, “the existence of an affirmative action plan, when combined with evidence that the plan was followed in an employment decision is sufficient to constitute direct evidence of the unlawful discrimination unless the plan is valid.”[55]

Diversity Initiatives — EEOC has emphasized that “Title VII permits diversity efforts designed to open up opportunities to everyone.”[56] Increasing recruitment efforts is a classic example of a permissible diversity initiative. An “inclusive recruitment effort…to generate the largest pool of qualified applicants” while helping “to ensure that minorities and women are not discriminatorily excluded from employment” will likely not be actionable as discrimination.[57] In other words, expanding the slate of qualified candidates is a permissible form of outreach that does not implicate the actual selection or screening decisions that have led to such fraught results for employers.

Similarly, an employer that is changing its hiring practices can take steps to ensure that the practice it selects minimizes the disparate impact on any racial group. For example, “an employer that previously required new hires to have a college degree could change this requirement to allow applicants to have a college degree or two years of relevant experience in the field.”[58] Indeed, the issue in Griggs was over-credentialing in the form of a high school diploma or IQ test score without any showing that it was needed to perform successfully the jobs at issue.[59] Establishing mentoring and internship programs will likewise expand opportunities to capture a larger pool of candidates without resulting in a selection decision under Title VII. And finally, offering employees training on nondiscriminatory hiring practices is always a best practice.


Employers seeking to undertake diversity actions must proceed with caution. Broadening the pool of candidates to increase diversity is generally permissible and may even reduce risks of disparate impact liability. Moving to the next step of infusing selection decisions with race- or gender-conscious factors, however, requires more, and must be undertaken carefully. Take the steps necessary to meet the Weber/Johnson requirements: 1) Conduct a privileged analysis (if the employer does not already have one) to confirm that there is a manifest imbalance; 2) commit to hiring the most qualified candidate and not removing any qualified non-minority or non-female candidate from consideration (to help avoid unnecessarily trammeling rights); 3) commit to a regular (e.g., annual or bi-annual) evaluation to determine the continued necessity of the practice to ensure the program is temporary and designed to correct any imbalance, not maintain a level of representation; and 4) ensure compliance with Weber and its progeny.

[1] Andrew Ross Sorkin, BlackRock’s Message: Contribute to Society or Risk Losing Our Support, The New York Times (Jan. 15, 2018), available at

[2] In re Amendment to Rule Regulating The Florida Bar 6-10.3, Case No. SC21-284 (Apr. 15, 2021), available at

[3] Id.

[4] Id.

[5] Bradley M. Gayton, senior VP general counsel at Coca-Cola, Commitment to Diversity, Belonging, and Outside Counsel Diversity (Jan. 28, 2021), available at; Boyden Gray Calls Coke’s Diversity Plan ‘Unlawful, Law360 (Apr. 28, 2021),

[6] See Local 28 of the Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421, 448-49 (1986) (Congress gave lower courts broad power under Title VII to fashion the most complete relief possible to remedy discrimination, including the power to fashion affirmative action relief).

[7] For example, federal contractors may be subject to affirmative action requirements of Executive Order 11246, which is enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs,

[8] U.S. EEOC, Section 15 Race and Color Discrimination, EEOC Compliance Manual §15,

[9] 29 C.F.R. §1608.1(c).

[10] EEOC Compliance Manual §15.

[11] 42 U.S.C. §2000e(2)(a)(l) (prohibiting an employer from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin[;]”); 42 U.S.C. §2000e(2)(a)(2) (prohibiting an employer from “limit[ing], segregat[ing], or classify[ing] his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin”).

[12] Griggs v. Duke Power Co., 401 U.S. 424, 429-30 (1971).

[13] See H. REP. NO. 914, pt. 2, at 26 (“Testimony supporting the fact of discrimination in employment is overwhelming.”).

[14] Id. at 27-28.

[15]See 29 C.F.R. 1607.2 (EEOC guidelines apply to selection procedures which are used as a basis for making employment decisions or which lead to an employment decision such as hiring).

[16] Shipley v. Dugan, 874 F. Supp. 933, 937-38 (S.D. Ind. 1995) (“[I]f Plaintiff can prove that Defendant [] screened her out of the [interview] selection process based upon the impermissible characteristics of race or national origin…Plaintiff will have prevailed and will be entitled to an injunction prohibiting such behavior in the hiring process in the future.”).

[17] Rudin v. Lincoln Land Comm. Coll., 420 F.3d 712, 722 (7th Cir. 2005) (explaining that “the practice of including a racial minority in the candidate pool, when considered with other factors in a case, can constitute circumstantial evidence of” race discrimination).

[18] Griggs, 401 U.S. at 429-30.

[19] McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 285 (1976) (Title VII prohibits racial discrimination against white persons in addition to nonwhite persons); see also Furnco Constr. Corp. v. Waters, 438 U.S. 567, 579 (1978) (reiterating that proportional representation by race or other protected characteristic does not generally permit or excuse individual race discrimination, because “the obligation imposed by Title VII is to provide an equal opportunity for each applicant regardless of race”).

[20] 29 C.F.R. §1608.1(a).

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] 29 C.F.R. §1608.3.

[27] Weber, 443 U.S. 193 (1979).

[28] Id. at 204, 208.

[29] Id.

[30] Johnson, 480 U.S. at 642.

[31] In 2009, the Court decided the case of Ricci v. DeStefano, 557 U.S. 557, 129 S. Ct. 2658, 174 L.Ed.2d 490 (2009), a case where the City of New Haven, Connecticut, was accused of intentionally discriminating against white and Hispanic firefighters by discarding the results of a promotional exam because the results adversely impacted Black firefighters. 557 U.S. at 129. The Court held that, for the city to use intentional discrimination to remedy unintentional disparate impact discrimination, it must have a “strong basis in evidence” that it will be subject to disparate impact liability if it does not take intentionally race-conscious discriminatory action. 129 S. Ct. at 2664. Although there have been arguments raised that the Ricci test supplants the standard from Weber and Johnson, at least two courts of appeal have rejected that view. See Shea v. Kerry, 796 F.3d 42 (D.C. Cir. 2015); U.S. v. Brennan, 650 F.3d 65 (2d Cir. 2011). Though approaching the issue slightly differently, both courts reasoned that Ricci’s reach is limited to factual circumstances like those at issue in Ricci, such as modifying specific personnel outcomes to remediate putative disparate impact, not broad forward-looking opportunities to eliminate patterns of discrimination. Id. Indeed, Ricci did not even discuss Weber or Johnson. To the extent Ricci’s “strong basis in evidence” standard did put a gloss on Weber, we contend it would make more stringent the predicate for engaging in voluntary affirmative action.

[32] Higgins, 823 F.2d at 358.

[33] Id. at 356.

[34] Id.

[35] Id. at 357.

[36] Id.

[37] Id. (Specifically, the plan stated that “it is the [c]ity’s intention to accomplish this goal of equal employment opportunity.”).

[38] Diversity Lab, An Open Letter from the 4.0 Firms’ Chairs & Managing Partners,

[39] The “Rooney Rule” was promulgated after two African-American head football coaches — Tony Dungy and Dennis Green — were terminated in 2002. The rule requires NFL clubs to interview minority candidates for head coaching and senior leadership jobs.

[40], Board Diversity: Amazon Adopts “Rooney Rule” (June 12, 2018),

[41] See Bass v. Bd. of Cnty. Comm’rs, 256 F.3d 1095, 1102-03 (11th Cir. 2001), overruled in part on other grounds by Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008) (“Discrimination is discrimination no matter what the race, color, religion, sex, or national origin of the victim.”).

[42] Kafiti v. Aktiebolaget Electrolux et al., 3:21-cv-00029 (W.D.N.C. 2021).

[43] Grutter v. Bollinger, 539 U.S. 306, 330 (2003).

[44] Frost, 826 F. Supp. at 1296-97.

[45] Id. at 1297.

[46] See also Jaworski v. Cheney, 771 F. Supp. 109, 113 (E.D. Pa. 1991) (defendant improperly assessed a manifest imbalance resulting in liability).

[47] In re Birmingham Reverse Discrimination Employment Litig., 20 F.3d 1525, 1541 (11th Cir. 1994).

[48] Johnson v. Santa Clara Transportation Agency, 480 U.S. 616, 632 (1987).

[49] Schurr,196 F.3d at 497-98.

[50] Id. at 498.

[51] Frank, 347 F.3d at 133.

[52] Id.

[53] Id. at 137.

[54] Id.

[55] Id. (quoting and relying on Bass v. Bd. of County Comm’rs, 256 F.3d 1095, 1111 (11th Cir. 2001)).

[56] EEOC Compliance Manual §15.

[57] Duffy v. Wolle, 123 F.3d 1026, 1038-39 (8th Cir. 1997) (“The only harm to white males is that they must compete against a larger pool of qualified applicants. This, of course, ‘is not an appropriate objection,’ and does not state a cognizable harm.” (internal citation omitted)); see also EEOC Compliance Manual §15 (“[I]f an employer notices that African Americans are not applying for jobs in the numbers that would be expected given their availability in the labor force, the employer could adopt strategies to expand the applicant pool of qualified African Americans such as recruiting at schools with high African American enrollment.”).

[58] EEOC Compliance Manual §15.

[59] Griggs, 401 U.S. at 426-27.

Reed L. RussellReed L. Russell is a partner at Phelps Dunbar. He has broad expertise in employment matters, particularly complex EEO and wage and hour issues. Russell is the former legal counsel of the U.S. Equal Employment Opportunity Commission, the regional practice coordinator for the firm’s labor and employment practice, and a regular author and speaker on labor and employment issues.



Reed L. RussellJulie A. Girard is an associate at Phelps Dunbar. She represents employers in all stages of litigation, from pre-suit negotiations through administrative proceedings, mediation, and trial. Girard has significant experience defending employers in discrimination, retaliation, family and medical leave, and wage and hour cases.

This column is submitted on behalf of the Labor and Employment Law Section, Robyn Sue Hankins, chair, and Robert Eschenfelder, editor.

Labor and Employment Law