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Article

Abstract

In this piece, I situate these sorts of diversity requests within the broader context of other customer/client preferences that implicate Title VII. To be sure, the “inclusion riders” are not literal customer/client requests, but rather requests from celebrities who are themselves being hired by the employer for a specific project. Broadly speaking, however, they raise the same legal issue regarding third-party preferences that implicate protected characteristics under Title VII.

As a starting point, the general rule within employment discrimination law is that customer preferences cannot justify discriminatory treatment by employers. That baseline has led courts to rule that employers cannot, for instance, hire only female flight attendants on grounds that people prefer to be served by women, or accommodate racist customers' requests for white employees. However, there are certain openings within federal employment discrimination law for some customer/client preferences, in some situations, to provide successful defenses to what would otherwise likely be actionable discrimination. In a recent article, I provided a taxonomy of those preferences, which I deem the “preferred preferences.” Such preferences include (1) aesthetic appeal; (2) physical privacy from employees of the opposite sex; (3) psychological comfort/affinity with employees of the same sex; (4) an English-speaking environment; (5) the desire not to be proselytized to/feel judged; and (6) convenience. As I noted there, an open question is whether diversity itself may become a seventh preferred preference to which courts will defer.

This piece addresses that specific question. First, I describe the broader context of “preferred preferences” within Title VII. Second, I explore how the diversity preference does--and does not--fit into that landscape, and how it connects up with affirmative action doctrine. I conclude with some suggestions about the best ways for employers to respond to the growing diversity preference.

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