Picture this: You've been tasked with hiring for a new role at your organization. After interviewing a diverse group of capable candidates, you assess the hiring metrics and select the one you believe to be most qualified. Later, a discrimination claim surfaces, alleging bias in your selection. The candidate claims that your implicit biases led to their non-selection—that your unconscious preferences for certain people and characteristics bled into your decision without you realizing it.
Under a traditional disparate treatment framework, claims of discrimination under Title VII and related federal, state, and local laws focus on intentional actions. But the appetite of employees to prove discrimination through unconscious bias is growing and, in some cases, courts have accepted implicit bias evidence to support such a claim.1 Shareholders and clients are also increasingly interested in the steps taken to eliminate unconscious bias in workplace decisions. Whether facing a claim or a question, it may be time for your organization to reevaluate and reinvest in its Diversity & Inclusion (D&I) efforts—in a way that minimizes legal risks without creating new ones.
Building an Effective D&I Program
While approaches vary, your D&I program should reflect your organization's values, the needs of your business, and the realities of your workforce. Whether you have recently initiated a D&I program or are accelerating well-established efforts, some basic principles should guide your endeavor to create and maintain a diverse, respectful, and inclusive workplace:
- Defining Diversity. Diverse perspectives and experiences lead to proven benefits in the workplace, including increased retention, productivity, and innovation. While race and ethnicity may be top of mind for D&I programs today, it's important to broaden your efforts to promote diversity across protected categories—such as sex, age, religion, disability status, gender identity, and sexual orientation. In developing diversity goals, you also need to keep in mind your available labor pool, especially if you are reliant on a local workforce. The Bureau of Labor Statistics is a valuable resource for such geographic and industry-specific data.
- Training on Respect in the Workplace. Workplace harassment, EEO, and bias training sessions are bedrock elements of employers' antidiscrimination efforts and, in some jurisdictions, are mandated by law. Check that your trainings have been updated to comply with evolving employment laws and develop training that aligns with your D&I goals. Components such as unconscious bias, bystander intervention, and inclusive leadership are worth considering.
- Apply Clear and Consistent Policies. Clear, legally compliant workplace standards can strengthen D&I initiatives and eliminate barriers, particularly in hiring, discipline, and performance. Make policies available to employees and incorporate them into training. Take stock of your internal complaint procedures; clear avenues for filing complaints can help prevent litigation and promote D&I goals. Most importantly, pay close attention to how policies are implemented—the consistent and equitable application of standards in the workplace will further your D&I efforts and reduce exposure.
- LGBTQ+ Protections. Update your employment policies and training in light of the Supreme Court's landmark 2020 ruling in Bostock v. Clayton County, which prohibits employment discrimination against LGBTQ+ workers.
- Recruiting, Hiring, and Retention. The hiring and retention of a diverse workforce is a key feature of D&I initiatives. Make sure your supervisors are using bona fide, objective criteria in the selection process. Examine your applicant base and consider steps to increase diversity in your hiring pool. For retention, take stock of your coaching and mentoring programs and employee resource groups.
Potential Pitfalls to Avoid
Flexibility is important as you develop and implement D&I initiatives. Be mindful of the legal limitations surrounding your D&I program and ways to prevent unnecessary litigation. For example:
- Quotas and Reverse Discrimination. Title VII and other laws generally prohibit private employers from taking explicit actions on the basis of a protected trait. Even if well intended, explicit preferences and rigid quota systems for underrepresented groups can lead to reverse or other discrimination claims and should be avoided.
- Affirmative Action. In limited circumstances under the law, private employers may voluntarily adopt affirmative action plans to increase minority representation. Reach out to your Labor & Employment counsel to discuss the boundaries within which these types of programs must operate. Note that affirmative action plans are required for certain federal contractors, under a separate set of mandates.
- Diversity Audits and EEO Data. Diversity audits and self-assessments have risen in popularity. We urge employers to consult with Labor & Employment counsel before embarking on these efforts to develop a deliberate approach that is subject to privilege, as needed. Unless done properly, audits and self-assessments can unwittingly provide potentially adverse evidence in a discrimination lawsuit.
Venable LLP has a nationwide team of Labor & Employment attorneys with deep experience in policy development, litigation prevention, and training in the D&I space. Please feel free to reach out to us to discuss how our attorneys can help you design, implement, and update your D&I program in a way that best serves the needs of your business.
[1] See, e.g., Samaha v. Wash. State DOT, No. cv-10-175-RMP, 2012 WL 11091843 (E.D. Wash. Jan. 3, 2012) (finding expert testimony on implicit bias "relevant to the issue of whether an employer intentionally discriminated"); Kimble v. Wis. Dep't of Workforce Dev., 690 F. Supp. 2d 765 (E.D. Wis. 2010) (finding Title VII discrimination because supervisor's behavior "suggest[ed] the presence of implicit bias").