June 26, 2023

Diversity or Age Discrimination? Lilly Pays $2.4M to Settle the Question

On September 26, 2022, the EEOC announced it filed a lawsuit alleging Eli Lilly and Company and Lilly USA, LLC (determined to be joint employers) engaged in age discrimination. “Lilly’s senior vice president for human resources and diversity recognized at a Leadership Town Hall that Lilly’s workforce was composed of older workers. The senior vice president then announced goals for ‘Early Career’ hiring to add more millennials to Lilly’s workforce.”

On June 26, 2023, the parties settled the matter for $2.4 million to “fully and finally resolve the claims asserted by the EEOC.”

Now, do not raise your hand but ask yourself about your company’s DEIBA initiative. Have you ever looked at your workforce demographics and thought, “We have a high percentage of [fill-in-the-blank with age, race, or sex]. Perhaps we should focus on increasing our diversity and hiring more [fill-in-the-blank with a different age, race, or sex]. On its face, that is what many employers do.  On its face, many believe that to be a valid effort in the spirit of DEIBA. The risk is when the employer considers the legally protected status: during recruitment or when the selection decision is made. If it is the latter and the effort to include some ends up excluding others based, in whole or in part, on a legally protected status, that may be called unlawful discrimination.

So, how can employers take good faith steps to advance DEIBA initiatives and enhance the diversity of their workforce without landing in legal hot water? First, talk to your company’s legal counsel. Understand the implications of federal, state, and local anti-discrimination laws. Understand your business goals; why are you trying to do what you are trying to do? What benchmarks and metrics will you use to determine when your goal has been met?

Perhaps, most importantly, focus your efforts on outreach and recruitment, not on your selection decision. If you want to increase the representation of a certain demographic, reach out to academic institutions, professional, trade, and industry associations that support those groups to invite more qualified candidates into your applicant pool.  When it comes time to make your selection or hiring decision, focus on job qualifications, not the legally protected demographic.

Then, join the August 23rd webcast, “Age Discrimination in Employment,” 3:00 – 4:15 p.m. ET.

NOTE: As I read this case, I found it interesting that the court wrote, “as a part of its effort to retain Millennial workers, Eli Lilly has created resource groups for younger employees who it calls “Early Career Professionals.” The White House recently issued a “Call on Employers” to offer employee resource groups (ERG) for Jewish employees.  Standing alone, ERG’s can be welcome and productive.  They are sometimes cited, however, as evidence of an employer’s bias in favor of or prejudice against individuals who are not members of the targeted group.  You may want to talk to your company’s legal counsel before introducing an ERG.