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DEI under fire and how to fix it!

Are you running a DEI program, but not seeing any return on your investment? Or perhaps your DEI program has come under fire, and you're wondering how to increase diversity but stay legally compliant. 

DEI initiatives are increasingly under fire from company shareholders, employee-plaintiffs, and legal advocacy groups for failures to meet established goals or allegations that they discriminate against majority groups. A wave of EEOC complaints and lawsuits has surfaced since 2020 in the wake of racial justice social movements and the death of George Floyd. On the other side, the workforce is increasingly made up of GenZ and Millennial workers who demand DEI in their workplaces and the world in general. If you're wondering how to balance your DEI program between these two extremes, here are ten tips for you!

  1. Get good at employment law. Laws are ever-changing, but there are ways to stay up to date on laws that may impact how you implement your DEI initiatives. Consult with a trusted legal resource, join an employment law listserv, or set up a reminder to periodically check the web for legal updates in your area. Believe it or not, Google is a great resource for locating legal information!

  2. "Bake in" diversity, rather than making it a compliance function. DEI is tricky. You want to increase diversity but making components of a DEI program mandatory can cause legal trouble. Instead, think about ways to simply incorporate diversity as part of your culture. Include "diversity moments" in business meetings. Ensure your managers are included in DEI efforts and have ample opportunities to engage with female and minority employees. Establish diversity and inclusion as a pillar of your corporate culture.

  3. Eliminate quotas and financial connections to DEI goals. Not only can these things be used as evidence of reverse discrimination, but they can foster resentment and negative attitudes toward DEI programs and companies. An easy rule of thumb is that a defensible DEI program will have numbers tied to activities but not groups; five DEI meetings per year is fine, but five DEI hires is not.

  4. Define diversity broadly. Instead of looking at diversity as a race/color/gender topic, consider other characteristics of employees that aren't protected characteristics. Examples could include recreational activities, languages spoken, work experience, or pet ownership. Using non-traditional characteristics has the added benefit of creating new categories of belonging and inclusion as well. So, a line-level employee who is part of the cat owner group might find opportunities to engage with your cat-loving CEO or might find connections with employees with very different backgrounds than his who also enjoy bowling.

  5. Ensure mentorship and development programs are open to all. You may be inclined to include these types of programs as part of your DEI efforts, but there's a catch: Everyone has to have the chance to participate. If you limit participation to only DEI beneficiaries, you may have waded into legal hot water. Remember that discrimination means treating people differently based on protected characteristics, so you can't use that as a basis for participation in work programs.

  6. Train your people. Yeah, yeah, nobody likes training. But there are (at least) two important reasons why you need to do this. First, managers have to understand what they can and cannot do from a legal perspective. That's the compliance function. But more importantly if you train everyone, even your non-managerial employees, on diversity and inclusion, you create greater awareness and add extra eyes who can let you know when something is going wrong. That lets you address issues quickly. So, spread the word!

  7. Watch what you say. Even if your program is compliant on paper, verbal messaging can create misperceptions and distrust. This messaging is even more crucial when it comes from your leaders and executives. If leaders make statements that appear to be preferential towards DEI beneficiaries, employees will view your program as biased regardless of whether it is or not. Ensure your leaders understand how to talk about DEI properly.

  8. Stop measuring. Rather than looking at DEI metrics, focus generally on inclusion and belonging instead. Create a culture where DEI is a norm, not the exception, and continuously reinforce it. Support your cultural norms with DEI traditions (activities which reinforce belongingness to the culture) that allow for participation and ownership, such as community outreach and mentorship. Culture is the most powerful tool an organization has in its employee relations toolbox, so use it!

  9. Foolproof your hiring practices. Create controls that remove the possibility of bias whenever possible. Ensure hiring managers do not have access to diversity demographics of candidates. Examine your candidate pools and, if they seem more homogenous than heterogenous, expand them by looking at other recruiting sources. Ensure minimum qualifications are valid and applied evenly to all candidates. Belonging and inclusion starts at hire!

  10. Take all complaints seriously. If you receive complaints, including complaints of reverse discrimination, take them seriously and conduct a prompt and thorough investigation. Even if you don't feel a complaint has merit, do your due diligence to look into it and document your findings. You may even uncover issues that need to be addressed. Responsible handling of complaints can only increase the credibility of your DEI program and company.

As you can see, the future of DEI relies heavily on cultural change and control mechanisms versus what has been, up to this point, a reliance on mandates and compliance. DEI programs are being tested in the courtroom more than ever, making now a great time to retool yours. Even if you can't implement all of these tips, ensure you follow the most basic one: When it comes to DEI, numbers are great for measuring activities but not for measuring heads. The best way to craft your program is to get away from numbers and focus on building a strong corporate culture where diversity and inclusion is baked in. Otherwise, your program may inadvertently promote reverse discrimination, and a DEI program that is discriminatory defeats the whole idea of diversity and inclusion, doesn't it?

DEI under fire and how to fix it! © 2024 by Michelle Swan is licensed under CC BY-NC-ND 4.0

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