How to Keep Diversity Initiatives Out of the Court Room

In this week’s guest column, Diversity, Equity and Inclusion (DEI) Expert & Attorney Nirupa Netram provides sound advice on how to ensure your diversity initiatives stay out of the court room, especially given the recent rise in reverse discrimination claims. “It’s all about inclusion,” shares Netram; and offers four practical solutions to avoid legal challenges to diversity initiatives in the US.

One out of four employees feel they do not fit in, according to BetterUp. As more companies and industries increase their focus on including individuals with a diversity of identity and diversity of thought in leadership and boards, they must not lose focus on the importance of inclusion of all people. Being an immigrant Indian attorney and diversity and inclusion champion, I applaud organisations that are trying to increase the representation of diverse voices.

Several countries have imposed quotas in recent years to address the lack of diversity and inclusion. In the US, quotas could violate anti-discrimination laws. Title VII of the Civil Rights Act of 1964, a federal law, protects employees from discrimination based on their race, colour, religion, sex, or national origin. States have similar laws. The US Department of Labor (DOL) administers federal labour laws to guarantee workers’ rights to fair, safe and healthy working conditions; including protection against employment discrimination.

RISING REVERSE DISCRIMINATION CASES

Businesses in the US must therefore be careful that their diversity initiatives do not trigger an inquiry from the DOL or claims of reverse discrimination. Reverse discrimination occurs when an employee who does not belong to a traditionally marginalised group claims discrimination. Either scenario could conceivably occur if a US company, for example, implements a quota to hire more individuals of a certain underrepresented group; such as the next four people we hire as associates in technology must be women. As reported by several news outlets, when Microsoft and Wells Fargo announced plans to hire more Black employees; the DOL asked them to prove their initiatives complied with existing laws against discrimination. The DOL subsequently closed those inquiries.

Attorneys in the US have reported an increase in employees claiming reverse discrimination because of diversity initiatives. In October 2021, a US jury awarded a $10 million verdict to a senior employee after the jury found that the employee’s race (Caucasian) and/or his gender (male) was a motivating factor in the company’s decision to terminate him. This employee was one of several other executive-level white males replaced by underrepresented minorities and females around the same period; as part of the company’s overall diversity strategy. Ironically, the senior employee the company terminated was a strong advocate of diversity.

What can companies do to avoid a potential DOL inquiry or claim of reverse discrimination; while still furthering a diverse and inclusive workplace? Here are a few practical solutions:

HAVE ASPIRATIONAL DIVERSITY GOALS

Many companies are choosing to develop aspirational diversity goals, backed by data specific to the company and industry; versus diversity quotas to avoid potential legal ramifications. For example, McDonald’s website includes an aspirational diversity goal. That goal is: “By the end of 2025, McDonald’s expects to increase the representation of historically underrepresented groups in leadership roles (Senior Director and above) located in the US to 35%.” The use of the word “expects” renders this an aspirational goal.

CONSULT WITH LEGAL COUNSEL  

Large businesses nowadays have an in-house attorney (for example: general counsel); or work with an outside attorney to handle employment law matters. It is important to involve legal counsel, with expertise in employment law, when implementing a diversity strategy, goals, and benchmarks. This ensures the company’s diversity initiatives comply with the (federal, state and local) laws applicable to the business; which is important for companies in various states and/or countries. Failing to include counsel in these discussions could result in an inquiry from the DOL about diversity initiatives; and/or complaints/lawsuits from employees.  

ESTABLISH & MAINTAIN A ZERO TOLERANCE WORKPLACE

According to the Limeade Great Resignation Update 2021 study, instances of discrimination (20%) was among one of the five main reasons employees quit their jobs. Several large companies, some of whom have been applauded for their diversity efforts, have made headlines for claims of rampant discrimination, sexual harassment, and other illegal/unethical behaviours.

Every business should have written policies addressing these topics, review them at least annually and revise them if necessary; and regularly communicate them to its employees. Additionally, the company should have a written, well-publicised mechanism for employees to internally report alleged wrongdoing. An organisation should promptly and thoroughly investigate claims of wrongdoing neutrally. And, if an investigation reveals there is truth to a complaint, the business must take appropriate action; including separating the offender, if warranted, without delay. This sends a clear signal of the organisation’s commitment to an ethical and inclusive workplace; which is critical to the success of any diversity strategy and the longevity of the business, including its employees.

INVOLVE ALL VOICES ON DEI INITIATIVES

When an event occurs that directly involves an underrepresented group, a company may react by only including those individuals of that group. For example, in the wake of the murder of George Floyd, one company known for its inclusivity only asked its Black employees to share how they felt; and what actions that company can take to support them. The company did not provide the space for other employees to share their feelings or their input. I believe businesses should be mindful to voluntarily include all voices in such conversations and their diversity initiatives. It is important that every single employee is heard and valued and feels that they belong in their workplace.  

Businesses can have a robust diversity strategy that co-exists with policies that comply with the law. It just takes a little consideration and a lot of inclusion. 

MORE ABOUT THE AUTHOR

Nirupa Netram is a certified diversity, equity, and inclusion (DEI) in the workplace professional committed to supporting diverse populations. She has more than two decades of experience as an attorney and executive in multiple sectors in the areas of DEI; human resources; operations; programme management; and more. Netram is the founder of Lotus Solutions LLC; a Florida-certified woman and minority-owned enterprise that helps local, national, and international organisations build and sustain DEI to ensure a fair and just workplace.

Here’s some sound advice on how to minimise the likelihood of corporate scandals. Click here to read more.