Championing Inclusion in an Era of Emerging Risks

Shook, Hardy & Bacon L.L.P.

Shook, Hardy & Bacon L.L.P.

Increasingly, DEI has come to mean different things to different people, and public understanding of this work continues to evolve (and in some instances, devolve). Amplifying unheard voices, rooting out bias, welcoming differing opinions and exploring how collaboration brings us together in the workplace as people through shared experience are among the goals of DEI policies.

It has also become increasingly clear that inclusion is a business imperative. We now know, with the help of volumes of empirical data, that driving diversity helps to make each of our organizations a destination for top talent. Driving diversity helps us to win in the marketplace. We know that the ability to lead diverse teams will be an important leadership capability going forward. No more homogenous teams. Additionally, driving diversity helps us to differentiate in the marketplace. We know that high-performing, inclusive organizations not only contribute to the bottom line but also meaningfully contribute to the growth of institutional goodwill and brand equity.

But how do we create and maintain high-performing, inclusive organizations and teams? How do we embed values and accountabilities into our inclusion strategy? What aspect(s) of our incumbent institutional culture may be working at cross purposes with our inclusion ambitions? Why does belonging and safety matter? As a result of DEI efforts, how do we minimize our organizations’ exposure to legal, financial or reputational risks?

In today's pitched landscape, the 21st century DEI conversation has transcended mere dialogue about culture and HR initiatives. In the aftermath of the pandemic, traditional notions of corporate governance, human capital management, fairness and sustainability (i.e., climate) are all reshaping in response to a new post-pandemic, post-“George Floyd” world. Similarly, traditional notions of board duties and shareholder rights also continue to evolve given new interest in DEI from regulatory agencies such as the Securities and Exchange Commission.

Gone are the days when DEI initiatives were solely concerned with fostering a welcoming culture or implementing community engagement programs. While these remain vital components, the terrain has shifted dramatically. Organizations now find themselves confronted with myriad legal challenges, emergent business risks, and heightened scrutiny from various stakeholders, including investors, governmental entities, activists, and even DEI opponents. This 21st century DEI work requires us to consider not only the cultural informants but to also interrogate how DEI-related efforts might raise enterprise risk. “New” DEI will also undoubtedly impose some (to be determined) new fiduciary expectations on public company board directors.

The evolution of DEI-related risks demands a proactive and strategic approach from organizations—an approach that brings together multiple perspectives and disciplines from across industries. No longer will an approach that silos DEI within an organization or imbeds the work within an HR function be sustainable. This moment punctuates what those of us invested in this conversation have known for some time—that DEI is not an event. Nor can it be relegated to a predominately altruistic lens. Inartfully crafted policies and inconsistent practices and programs, though-well intentioned, can expose organizations to legal, marketplace and reputation risk. Good intentions will no longer suffice.

Attorneys who understand DEI policies from top to bottom are uniquely positioned to assist organizations in navigating these challenges cross-functionally and proactively. Through a comprehensive suite of services, including risk assessments, policy development, crisis communication, training programs/workshops and litigation support, experienced counsel can deliver quality advice on the pressing and evolving issues facing clients and ensure opportunity through inclusion.

In today's interconnected world, where social justice movements intersect with corporate governance and regulatory frameworks, the need for a robust DEI strategy has never been more pressing. Organizations must recognize DEI as not only a moral imperative but also a legal imperative—one that requires proactive measures and expert legal guidance.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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