?Many employers have a long-standing diversity, equity and inclusion (DE&I) policy and DE&I training, but some find they don’t achieve the intended goals.
Experts discussed DE&I effectiveness at the American Bar Association’s Labor and Employment Law Conference on Nov. 10. They recommended determining what your goal is for having a DE&I policy and training. Is it to avoid discrimination lawsuits, foster an inclusive workplace, satisfy a board’s demand for diversity or recruit top talent?
DE&I training can help to reduce microaggressions in the workplace, which are behaviors that devalue people in a certain identity group. Examples of this include asking to touch a Black person’s hair, calling a Black woman aggressive and expecting women to take the meeting notes while men don’t, according to Kimya Johnson, an attorney with Jackson Lewis in Philadelphia.
DE&I training can help to reduce implicit bias in decision-making about hiring, promotions, development opportunities, disciplinary actions and performance reviews. Examples of implicit bias include supervisors being more lenient toward employees who look and think like they do, judging women by their performance alone while judging men by their potential, and assuming that women will take on maternal and caregiving roles, according to Stacy Hawkins, a law professor at Rutgers Law School in Camden, N.J.
This often happens unconsciously. “There are lots of things that we can be doing that we don’t have an idea that we are doing. It’s about mental shortcuts,” Hawkins said.
There’s litigation risk for employers that don’t take microaggressions and discrimination claims seriously, Johnson said.
“There has been a decrease” in discrimination claims with the U.S. Equal Employment Opportunity Commission (EEOC) in recent years, said Melissa Pierre-Louis Washington, an attorney with the Washington Law Firm in Washington, D.C., “but they remain high.” The EEOC filed 22,064 race discrimination charges in 2020, compared with 31,027 in 2015. It filed 21,398 sex discrimination charges in 2020, compared with 26,396 in 2015.
For employers using artificial intelligence in hiring, there are “tremendous risks” of “turbocharging discrimination in our decision-making,” said Kristen Clarke, assistant attorney general for civil rights at the U.S. Department of Justice in Washington, D.C.
Best Practices
Panelists at the conference recommended these best practices to make DE&I efforts more effective:
- Track DE&I metrics, such as employee demographics, hiring rates, attrition rates and discrimination complaints over time.
- Assess pay data to find any racial or gender disparities.
- Hold leaders accountable for progress toward DE&I goals.
- Cast a wider net, so the same person or the same small group isn’t always responsible for DE&I work.
- Make sure DE&I committees are diverse.
- Foster open communication to support inclusivity in the company culture.
- Use exit interviews and stay interviews to assess the effectiveness of your DE&I policy.
Tracking DE&I metrics is important because “you can’t address what you don’t measure,” said Dora Chen, associate general counsel for the Service Employees International Union in Washington, D.C. “We need to have folks invested in the work, so they feel personally responsible.”
Nonetheless, hitting the diversity numbers in hiring is not enough by itself. “If you are doing DE&I because you are trying to achieve some sort of organizational benefit, diversity without inclusion is actually a liability not an asset,” Hawkins said. “That is fraught. It is volatile. If you have inclusion, if you create a culture where people can come together around shared values and bring their whole selves into the workplace, then you unlock the potential of DE&I.”
Expecting the same handful of employees of color to always lead corporate DE&I efforts is a mistake. “People are tired of being the lone person or one of the faithful few who are expected to advance DE&I,” Johnson said. “People get tired of not being resourced, not being supported and not having engagement of people beyond themselves” in DE&I efforts.
Change Is Coming
The rules for what employers can and cannot do in their DE&I efforts may change when the U.S. Supreme Court issues its final opinions in two cases on affirmative action in higher education. “We’re bracing for a retraction around our organizational DE&I efforts and government-regulated DE&I actions, as well,” Johnson said. “What we’re advising organizations to do is be very clear about what their values are.”
“Many observers predict a spillover to workplace policies,” said Louis Lopez, chief of the policy and strategy section at the civil rights division of the U.S. Department of Justice in Washington, D.C.
Hawkins predicted the court will ban affirmative action in higher education, and “there will be some adjustments that we will have to make.”
