According to recent articles as well as news publications, there is confusion among organization leaders wanting to support diversity, equity, and inclusivity (DEI), but fearing potential litigation. For us, basing DEI initiatives on policies and procedures alone may have led to the legal misinterpretation around DEI. Instead of separate policies and procedures, such initiatives should be a culture shift and embedded within the organization culture and how business operates.
As you recall, DEI flourished in 2020. The purpose was to level the playing field within education and corporations. Now, there has been a barrage of attacks on diversity, equity, and inclusion (DEI) initiatives since June 2023, when the Supreme Court effectively ended race-based afﬁrmative action in higher education in the Students for Fair Admissions (SFFA) case. Since then, large organizations have been dealing with formal complaints, litigation, and threatening letters. Regardless, most businesses remain committed to the need for DEI.
The concerns voiced, by opponents are that DEI results in ‘reverse discrimination’ based on hiring quotas and preferences related to members of a legally protected group, or related to beneﬁts such as getting a job, a promotion, a raise, or training and development opportunities.
That said, the intentions of DEI programs are to compensate for conscious and unconscious biases – level the field – without intention to cause discrimination. The HBR authors on mitigating risk provide suggestions to avoid this concern and the litigation issues while still honoring DEI. Below is a summary; however, additional information can be found in the article.
- Avoid Preferences: From “Lifting to Leveling”
- Rather than giving “preference” to some groups, organizations can explore DEI actions that are identity-neutral but remove biases from the workplace.
- The second option is to shift from “cohorts to character” (downshifting). This means considering a candidate’s identity only where it speaks to their individual character.
- The final option is to shift from “cohorts to cohorts” (side-switching). This means shifting from cohorts protected by laws such as Title VII to cohorts that are not protected in such ways. For example, an organization could adopt a program that advances socioeconomic diversity, given that socioeconomic status is not a protected attribute.
2. Avoid Palpable Beneﬁts: From Adverse to Ambient
Organizations can reduce legal risk by avoiding palpable benefits. Dimensions has written about these topics in the past. It’s not about hiring policies and developing written procedures but creating DEI by building a more diverse and inclusive workplace culture overall. The authors suggestions fit within safety, wellness, and leadership ideals such as:
- Conduct ongoing employee and leadership education on topics such as biases, being an ally, and inclusive leadership. This should NOT be a one-time training session, but rather a program or ongoing initiative that provides opportunities for support, discussions, and comradery.
- Create a more physically inclusive work environment, for example through providing all-gender bathrooms, quiet rooms/mother rooms, and/or child-care facilities.
- Conduct outreach to a broader range of colleges to attract a more diverse candidate pool.
- Support community organizations focused on DEI issues, for example through pro bono work and philanthropy.
- Refer to ESG and DEI in 2024 for additional considerations.
DEI may have started with objective policies and procedures within the HR department, but now is evolving to being embedded in the day-to-day operations of work. These initiatives will now fall within an organization committed to providing a culture of well-being – a work environment that is safe and sound.
The need for diversity, equitability, and inclusivity remains. According to the authors of the HBR , “As Justice Sotomayor pointed out in her dissent in SFFA, ‘Diversity is now a fundamental American value, housed in our varied and multicultural community that only continues to grow.”
Here are 2 blatant cases there is any doubt of the importance of DEI.
- North Carolina Attorney General announced a $13.5 million settlement with a bank accused of discriminatory lending practices toward Black and Hispanic neighborhoods in two large cities in NC. The First National Bank of Pennsylvania engaged in “redlining” by routinely avoiding providing home loans to applicants in Black and Hispanic areas and discouraging them from applying for loans.
- According to a Department of Labor blog, historically, Black Americans have faced significant discrimination and have been refused equity in our society, including in workplace safety and health. While we’ve made great strides in workplace safety, too many workers are still subjected to conditions as dangerous more than a half century ago. The fatality rate for Black workers is higher than other workers, reaching an all-time high at 12.6% of fatalities in 2021. The disparity is especially clear in the fatality rates for major demographics: Black or African American workers had a fatality rate of 4.0 per 100,000 full-time workers, compared with an average of 3.6 for all workers.
The rise in fatal injuries and illnesses links to racial disparities and social issues Black Americans face, such as limited education opportunities, lower earnings and more exposure to hazardous jobs than white Americans. They are also more likely to fear retaliation for speaking up about health and safety concerns at work.