By Mary Troyan
American employers should voluntarily recruit and interview minorities for top job openings, according to a resolution proposed by Sen. Tim Scott of South Carolina.
The idea, modeled on an effort to increase the number of black head coaches in the National Football League, is attracting support from both sides of the aisle in Washington.
Scott's resolution wouldn't carry the force of law if it's passed. But it would put the Senate on record as supporting stronger efforts to increase workplace diversity.
"The ultimate goal of the resolution was to hopefully heighten awareness of the opportunities to create the workforce of the future, today," Scott, a Republican, said this week.
The resolution, introduced in late July, has picked up four Republican and three Democratic cosponsors from across the political spectrum: Republican Sens. Rand Paul of Kentucky, Marco Rubio of Florida, Deb Fischer of Nebraska, and Rob Portman of Ohio, and Democratic Sens. Mary Landrieu of Louisiana, Mark Pryor of Arkansas, and Cory Booker of New Jersey.
It cites a recent study by Crist Kolder Associates that says 27 of the nation's top 668 companies have chief financial officers that are African-American, Hispanic or of Asian descent.
The resolution credits the NFL's "Rooney Rule," named after Pittsburgh Steelers owner Daniel Rooney, with increasing the number of minority coaches in the league. The rule says teams hiring a head coach or a general manager must interview at least one minority candidate.
The previous 80 years saw seven minority head coaches in the NFL. There have been 13 since the Rooney Rule took effect 11 years ago.
"(It) has shown that once highly qualified and highly skilled diversity candidates are given exposure during the hiring process their abilities can be better utilized," the resolution states.
Scott said the resolution uses the Rooney Rule only as an example and doesn't dictate how many applicants should be interviewed. It is also not limited to racial minorities and calls for people from "underrepresented populations" to be considered for employment. Doing so, it says, would improve the American economy.
"I'm not sure all the mandates we put into law ever creates the long-term sustainable solutions we're looking for," said Scott, who said he opposes affirmative action and hiring quotas. "But if you bring people together and give them a chance to truly establish a rapport and credibility, they will solve each other's problems."
The resolution also endorses a similar rule from Robert L. Johnson, founder of Black Entertainment Television. The "RLJ Rule" encourages companies to voluntarily interview two minority job candidates for management jobs, and two minority-owned businesses for vendor contracts.
Johnson said in a statement he will send copies of the resolution to minorities serving on boards of publicly traded companies, the U.S. Chamber of Commerce and the Business Roundtable.
Johnson commended Scott and cosponsors of his resolution for their "belief that this country needs a stronger commitment to diversity and opportunity for minority Americans."
But Scott's efforts drew criticism from a lawyer with the Heritage Foundation, a conservative policy group based in Washington. Hans von Spakovsky, a senior legal fellow at the foundation, said decisions about whom to interview should not be based on race.
"Federal law doesn't just say you can't discriminate when you're hiring, it also says you can't discriminate in the application process, and if you specifically agree to interview somebody because of their race, you're violating federal law," von Spakovsky said.
Scott said he wants to encourage companies to broaden their pool of job applicants, not mandate whom they interview or hire.
"Anyone who can challenge this as discrimination of any sort, reverse or not, is just dead wrong," Scott said.
Constitutional law professors said that Scott's resolution would probably not run afoul of federal civil rights laws that prohibit discrimination in hiring.
"It's more of a recruiting tool than an actual point of awarding a benefit," said Kim Forde-Mazrui, professor at the University of Virginia School of Law.
Bryan Fair, professor at the University of Alabama School of Law, agreed, saying, "Aspirational goals are different from hard quotas."
However, the U.S. Supreme Court has moved over the years toward more color-blind public policies, and several justices might say race cannot be used to determine who gets a job interview, the professors said.
"If you had case where someone could prove that, but for the Rooney Rule, they would have gotten the interview and had a plausible chance of getting the job, there are people probably on the court today who are receptive to at least taking that argument seriously," Forde-Mazrui said.
Scott, the first black senator from the Deep South since Reconstruction, said his experience in the private and public sectors is that talking to job seekers from historically black colleges naturally leads to a more diverse workforce.
"To take a look at who we're talking to and how diverse are the groups and how do we create more diversity in the conversation, I think we're better off," he said.