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My vice president asked me to hire someone Black for a vacant position and include #BlackLivesMatter in the job posting. Can I hire a Black person solely based on race like this? It seems like I can’t. How can I even respond?

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You’re right, soliciting candidates based on their race is not legal. Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, as well as religion, gender and national origin — whether that discrimination is positive (hiring or promoting someone) or negative (not hiring or firing someone). It prohibits hiring, firing, promoting or favoring employees based on race.

Your VP wants to show that he supports Black Lives Matter and wants to further demonstrate this by hiring Black employees. While this is an important first step in the movement, taking that approach is technically a violation of federal law. You cannot prefer one race over another in hiring. There’s no law against including #BlackLivesMatter in a job posting, but it may be more positive and productive to the movement to take real action by casting a wider net to find candidates and avoid using biases in the hiring process. 

First, tell the VP you can’t do what he asks because it’s illegal. Federal law requires you have 15 employees before these laws kick in, but California brings this down to five. Reputable job boards would not want to host a job posting that says it’s recruiting applicants of just one race. And your lawyer would have a heart attack. 

In case the VP does not understand or take this well, have your employment lawyer on speed dial to explain why this is a bad idea. The job of the human relations department is to protect the company, and this is your job too.

There is a small loophole for this: While it’s OK to do targeted recruiting, once people apply, you must treat all equally, and the best person should get the job. So if you direct your recruiting toward Black candidates, you’ll likely get more Black applicants, increasing the probability that the best person for the job will be Black. 

You’ve probably seen this type of disclaimer on the bottom of job applications: “We’re an equal-opportunity employer. We do not consider race, religion, creed, color, national origin, age, gender, sexual orientation, gender identity, veteran status or disability. We strongly encourage diverse candidates to apply.” 

This type of statement should be at the bottom of your job postings, but that’s not the only thing you should do to help attract candidates who are people of color. You can make some significant changes in how you source candidates. If you currently have very few nonwhite employees in an area with a reasonably sized population of Black, Indigenous and people of color, then you need to change your sourcing.

Here are some ideas that can help you increase your reach to a more diverse group of candidates for your job openings.

1. If the job is entry-level, recruit at a college or high school that has a high percentage of BIPOC students. For further long-term hiring, work with these schools to provide internships. Not only will this give you future employees, but it will help train and develop these students.

2. Advertise in niche job boards. You might be tempted to throw every job opening onto Indeed or Monster or another one of the big job boards. But there are so many more. If you’re looking for someone for a financial position, for example, the National Association of Black Accountants has a job board. 

3. Consider blind screening. This is where you strip resumes of names and other identifying information that may identify a race or gender. It removes bias in job screening. Of course, when you interview in person, you’ll know the candidate’s race and gender, but this allows you to remove your own unconscious biases.

4. Take a look at your company’s web page. Does it look like an attractive place for BIPOC to work? If not, it’s time to revamp the website.

Of course, the most important thing is to be a good employer and make your workplace the type of place at which people want to work. Then you’ll get an abundance of applicants. Check your Glassdoor reviews, and if there are any problems (especially related to discrimination), work hard to correct those.

After getting as many qualified candidates as possible, approach the hiring process as you usually would. The best candidate gets the job offer. Make sure it’s a fair offer based on market rates and not based on what the candidate earned at their last job. That type of behavior is not only forbidden in California, but it also perpetuates discrimination.

Hopefully, your VP will be happy making changes to the recruiting process, and this will go smoothly.

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