July 25, 2018

The Intercept, a New York based online news site, must interview at least two minority job candidates for each open position under a clause in its first union contract with the Writers Guild of America, East.

Women, people of color, or members of the LGBTQ community must be considered for staff positions as part of an effort to open the door a little wider for underrepresented journalists.

Current staff advocated for the East-Intercept Rule, as it’s called by the WGAE. “They realized that having more diverse voices makes for better journalism,” WGAE Executive Director Lowell Peterson told Bloomberg Law.

Both Facebook and Amazon announced in May that they have adopted similar policies. Facebook is doing so company wide, and Amazon’s efforts focus on board of director openings. Quotas are not part of the equation, and that helps shield employers from discrimination allegations, employment attorneys say. Still, diversity recruitment is no cure-all for creating an inclusive workplace, they warn.

NFL Went on Offense in 2002

The Intercept labor pact rips a page from the playbook of the National Football League, which instituted what’s known as the Rooney Rule. The rule, voluntarily adopted by all NFL franchises in 2002, requires management to interview at least one minority candidate for every open head coach job. The NFL expanded the original rule, and it now covers general managers and other equivalent front-office positions. At least one woman has to be interviewed for executive positions, too.

The policy does not require making any particular hires of any particular race—just the consideration a diverse group of otherwise-qualified candidates.

Is It Legal?

Neither the East-Intercept Rule nor the Rooney Rule require quotas in hiring. This helps employers avoid allegations of reverse discrimination.

The NFL rule requires a team to interview candidates who are just as qualified as others, but the Intercept program doesn’t carry that requirement. Peterson said the union and management decided not to include “just as qualified” language.

“We did discuss Title VII ramifications, but the policy only covers interview requirements, not hiring, so that allayed our concerns,” he said.

Title VII of the 1964 Civil Rights Act bans employers from discriminating on the basis of race, gender, color, religion, and national origin.

“I think that the key in reverse discrimination cases is where there is a quota or rigidity about the hiring itself, as opposed to the interviewing itself,” attorney Kalpana Kotagal told Bloomberg Law. Kotagal practices Civil Rights & Employment law with Cohen Milstein in Washington.

Discrimination claims by people who are not members of a minority group “gain strength” when the requirement extends to hiring, not just interviewing, Kotagal said. Employers can protect themselves from complaints about discrimination by not instituting quotas, but, more than interview policies, quotas are what drive change, she said.

This article originally appeared in Bloomberg BNA.