Wednesday, April 11, 2018

The other side of diversity

Photo by Igor Ovsyannykov on Unsplash
Workplace diversity has two sides.

One side says that employers cannot discriminate against minorities. The other says that employers cannot discriminate against non-minorities in favor of minorities.

Some people call this reverse discrimination. I just call it discrimination.

For example, Title VII does not define “African American” or “men” as protected classes; it merely says “race” and “sex.” Thus, if you discriminate against a white person in favor of an African American, or against a man in favor of a woman, you’ve violated Title VII no differently than the converse.

Those who’ve be following me for any length of time know my well documented history of supporting LGBT rights. And, courts have begun to agree, (nearly) universally recognizing that Title VII’s definition of “sex” inherently includes LGBT individuals.

If, however, you are going to include “LGBT” in Title VII’s definition of “sex,” then, just as employers cannot discriminate against LGBT employees in favor of non-LGBT employees, employers also cannot reverse the equation.

In light of all of this, consider Philadelphia’s Mazzoni Center, an LGBT-focused healthcare and wellness non-profit.

It recently took some heat in Philly’s LGBT community for hiring a straight woman, Lydia Gonzales Sciarrino, as its new CEO. Some have criticized her lack of LGBT-specific health care experience (which, if true, would be a valid criticism), while others are more pointed, claiming that her hiring is a shameful “act of violence and deliberate silencing of the very communities Mazzoni is funded to serve.”

The Mazzoni Center defends its decision not only on Ms. Sciarrino’s qualifications, but also its non-discrimination policy:
When it comes to matters of employment, Mazzoni Center does not discriminate on the basis of race, creed, religion, color, national origin, ancestry, age, sex, gender identification or gender expression, sexual orientation, disability, marital status or any other protected status covered by federal, state or local law. Thus, all employment-related decisions are made solely on the basis of a candidate’s skills, ability, experience, education, training, and other legitimate factors related to the requirements of the job.

The Mazzoni Center’s Board considered Ms. Sciarrino the most qualified person who applied. If Title VII covers LGBT-status as sex (which I, and most courts, argue it does), then neither the Mazzoni Center, nor any other employer, can favor an LGBT applicant over a more qualified straight applicant. That would be illegal sex discrimination.

Diversity is a laudable goal. Let’s strive to make sure we are not taking positions that undermine it.