WCI, Inc
June 8, 2023

DEI Considerations

As the new year begins, many employers are taking the time to consider areas for potential advancement when it comes to company culture. As part of this, employers may be asking how they can further create welcoming workspaces for a diverse and inclusive workforce, including DEI initiatives.

DEI stands for Diversity, Equity and Inclusion. DEI programs in the employment context are meant to help employers create more equitable, diverse and inclusive work environments for their employees. This can include making small but impactful changes and/or complex, multi-step programs or initiatives.

DEI is intended to help advance important and impactful goals and correct ongoing societal inequities and systems. If designed and implemented with the appropriate level of consideration (and caution), DEI workplace programs can help achieve these goals. However, DEI initiatives do not come without risk, and employers' good intentions can end up leading them into a legal minefield if they are not careful. This is not meant to minimize or deter employers from undertaking DEI initiatives. Instead, we are outlining the top three things employers should consider when considering DEI-related initiatives or programs.

1. Get an Employment Lawyer Involved from Day One. If there is one takeaway to keep from this article, it's that companies need to get an experienced employment lawyer involved with the development of any DEI plans, programs or initiatives, and as early as possible. This is because DEI programs, as well-intentioned as they may be, can create significant legal exposure for employers.

For example, let's say Imaginary Company X decides to implement a DEI program and sets a target of hiring three non-white employees in 2023. This may make sense at first, but employment lawyers are shuddering reading this. That's because by creating a target or a quota (versus a goal), Imaginary Company X has created a discriminatory policy that discriminates against white applicants. However, if Imaginary Company X instead creates a goal of hiring x number of employees falling under an identified under-represented category, then that will likely comport with the law. This is just one example of how things as simple as phrasing can make an enormous difference, and having a lawyer involved will help avoid those potential pitfalls.

There's another important reason for working with a lawyer from day one. Companies who are creating DEI initiatives and programs often begin by auditing their workforces for areas of underrepresentation. That way, the company can clearly identify areas for potential improvement. While this step serves an important purpose, it can also be a gold mine for an opposing attorney, especially in a discrimination lawsuit. By having a lawyer involved from the get-go, a company may be able to protect such information.

2. DEI Changes Can Be Big or Small. One of the common misconceptions is that a company cannot engage in DEI work without implementing a layered, multi-year and multi-pronged program. While these programs can be great, they involve costs and resources that may put them outside of reason - or reality - for smaller or newer companies. But there are many smaller, less costly changes or programs available that can help foster greater diversity, equity and/or inclusion in the workplace. In fact, these changes may be more noticeable - and more meaningful - in smaller and more established companies. Think things as simple as executives including their pronouns in their email signatures, updating policies to be more inclusive, or building in flexibility for remote work (which may also be seen as an attractive benefit)! Actions as simple as executives making the time to learn more about DEI, the systemic issues at play, and biases in the workplace can help create a sturdy foundation for future DEI programs.

3. Beware of Band-Aids. DEI is meant to be an ongoing process, not a one-time fix or solution. Remember, DEI is supposed to help dismantle serious, centuries-old societal issues and inequities based on race, ethnicity, gender identity, biological sex, sexual orientation, religion, disability, et cetera. Yet, it is easy to fall into the trap of thinking, "the lack of diversity is a hiring problem, so if I can hire a diverse workforce, I've solved the problem." In reality, all this is doing is identifying the problem itself without asking why. Why is there a lack of diversity to begin with? Is it an unintentional byproduct of screening, or the application process? Is this also a retention issue? Are employees from specific backgrounds not feeling heard, appreciated, welcomed or safe, and if so, why? These questions should be asked early to help employers avoid applying a band-aid solution to a broken bone problem.

While this only scratches the surface of DEI in employment, it has hopefully provided some clarity on the topic and key considerations for employers. By building a solid foundation and partnering with a DEI-minded lawyer, employers can reduce risks while significantly increasing the potential successes - and benefits - that DEI offers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Elizabeth Payne-Maddalena, Berenzweig Leonard, (c) Mondaq Ltd.

From WCI's HR Answers Now ©2023 CCH Incorporated and its affiliates. All rights reserved.

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