In the wake of George Floyd’s death last year, a summer of protests against systemic racism, and a focus on violence against the Asian-American community, employers everywhere are working hard to address the systemic racism reflected in these tragedies by focusing on their diversity, equity, and inclusion (DEI) goals in the workplace. This April, in honor of “Celebrate Diversity Month,” in-house counsel and employment lawyers can help their clients in this important work in several ways:
Focus on Inclusion
Most DEI programs center on recruiting and hiring strategies. While these are necessary steps to bring diversity into the workplace, lawyers can help their clients focus on ways to enhance inclusion in the workplace. Inclusion comes down to good management, and lawyers are often brought in when management actions lead to litigation risks. By encouraging employers to foster inclusive leadership and management principles in their daily operations as a preventive tool, you can help them think more holistically and long-term about their DEI approach. As employment lawyers, we often can pinpoint a moment where management could have paid a little more attention to the way a decision or policy was communicated or implemented in order to prevent even the perception of disparity or inequity in the workplace. That extra time and care can often prevent the hard feelings that make any given employment issue a litigation risk.
Educate Clients on the Differences Between Racial Quotas, DEI Initiatives, and Affirmative Action Programs
As clients seek your counsel in their adoption of DEI initiatives and programs, protect their goals by making sure they don’t unwittingly establish racial quotas—which are illegal. Help them also understand whether they have any obligation to adopt a formal affirmative action program, typically required for federal contractors and subcontractors and in higher education. These programs require a written plan that is specific, data-driven, and temporary in nature—these benefit from experienced counsel who know how to work up these plans in compliance with federal laws. In between, the EEOC encourages private employers to voluntarily undertake DEI initiatives that promote an inclusive workplace, expand the pipeline of talent to hire, and to gain a “competitive advantage in the increasingly global economy.” These initiatives can focus, for example, on recruitment, training on unconscious bias, and the evaluation and elimination of systems that may be causing disparate adverse impacts in the workplace. Lawyers can help clients set appropriate goals that do not run afoul of Title VII’s prohibition of workplace discrimination, and keep employers focused on DEI work that does not inadvertently exclude workers based on their protected traits and identities.
Take Care with Climate Surveys
Climate surveys are a helpful tool for measuring the impact of DEI initiatives. By asking the workforce about whether they feel included and valued at work, employers can learn about the effectiveness of their DEI strategies. Care should be taken by counsel to ensure that these surveys, and the communications surrounding them, do not invite claims of discrimination that may require a thorough workplace investigation and disciplinary action by the employer. Disclaimers can be utilized to remind employees of the proper chain of command through which to report serious issues of discrimination and hostility, which is especially needed because climate surveys are often most effective when employees are assured of their anonymity. Discuss with your client how best to handle notice issues of incidents that an employee may be trying to “report” through these surveys.
Encourage Inclusive Handbooks
Handbooks and written policies and procedures can be a great way for employers to set the tone of the workplace, both because it is often the first document handed to an employee when they begin work, and as a training tool. Legal counsel can encourage employers to review and update policies that foster an inclusive workplace. This can be done, for example, with the use of gender-inclusive terms, leave policies that are family-friendly, non-discriminatory dress code and hair policies, and procedures that encourage an interactive process in search of accommodations that respect a worker’s religious, disability, or lactating needs. Presenting such options can help employers consider practices that can help reduce the risks of litigation for employee discrimination claims in the future.
Use Attorney-Client Privilege to Promote Candor
Many employers who are committed to the principles of equal pay often hire labor economists to help conduct pay equity audits. Legal counsel has an important role to play in these audits, whether or not the Department of Labor or the courts are involved. Assisting your client through this process—which may warrant you directly hiring the expert—may afford the employer with the benefit of attorney-client privilege when done for compliance purposes. The details and availability of this privilege will depend on each state and the facts and circumstances for each employer. If the privilege is available, however, lawyers can promote candor in the prevention of future claims while supporting a healthy workforce. As employers implement pay equity plans, if any are needed, lawyers can further advise on the best way to publicly communicate about steps being taken, consistent with the employer’s DEI goals.
These are just a few ways that lawyers can play an active role in helping employers visibly and authentically achieve their DEI goals.
 See 29 C.F.R. § 1608.3 (Circumstances under which voluntary affirmative action is appropriate.)