DEI Is Tricky
NEWSLETTER VOLUME 2.12
|March 22, 2024
DEI Is Tricky
Robin Shea has put together a great quiz on DEI practices. I took it and got one wrong. I was overly confident and not paying close enough attention to the questions. The topic is tricky and the quiz is kinda tricky. And now, you don't have to make my mistakes.
Here's a hint: discrimination against anyone based on a protected factor is illegal and inclusion means everybody. Unless of course, you are dealing with a judicial or governmental exception, which could change at any moment.
The important thing here is that I get things wrong and I'm still learning. Even though I've been doing this for decades, I have screwed up, sometimes in ways that are cringe. I had to figure out that just because I knew stuff, I had no idea about a whole lot of other things because they were not in my lived experience. So, I continue to try to do better by broadening my perspective, learning to listen, and working to understand others' experiences.
I've also quit trying to get people to change who don't want to change. It's better to see them for exactly who and where they are and stop waiting for the "right" thing to happen. It won't.
I can be much more effective when I see the situation clearly and can assess my realistic options.
And if you ever need evidence of a lawyer admitting she was wrong, here you go.
What's legal, and what's not?
Diversity, equity, and inclusion programs in employment are increasingly being challenged in the courts. How much do you know about the legalities? Take our quiz and find out! This is a hard one, but, as always, the answers will appear at the end of each question, so you can cheat all you want, and we'll never know.
If you make it to the end, there will be a special prize, selected especially for you.
Ready? Here we go!
No. 1: It is legal for employers to discriminate based on race, ethnicity, or sex, as long as they are discriminating against the "majority" groups.
TRUE
FALSE
ANSWER: FALSE. With very limited exceptions, discrimination is against the law, even if the victims are white or male. Or both, even.
No. 2: It is legal for employers to restrict special training and mentoring opportunities to members of certain racial or ethnic groups, or to women.
TRUE
FALSE
ANSWER: FALSE. See answer to No. 1.
No. 3: It is illegal to base a race-, ethnic-, or gender-specific diversity initiative on the fact that eligible members may have historically been victims of discrimination in society.
TRUE
FALSE
ANSWER: TRUE.
No. 4: Which of the following justify an employer's taking race, ethnicity, or sex into consideration when making employment-related decisions?
- If it's considered to comply with a voluntary affirmative action plan that was adopted to rectify historic discrimination in the company, with respect to certain jobs that exist at the company, or with respect to the industry in which the company operates.
- If it's considered because members of a certain race, ethnic group, or sex have historically been discriminated against in society.
- Nothing justifies taking race, ethnicity, or sex into consideration. This is a trick question.
- None of the above.
ANSWER: A. Here is the Guidance issued by the EEOC on voluntary affirmative action plans. And here is a very helpful blog post that Cara Crotty, who forgot more about this subject than I ever knew, wrote in 2021. This bulletin by Cara and David Phippen -- written last summer, right after the U.S. Supreme Court ruling in Students for Fair Admissions -- also has excellent information.
It's important to note that quotas or set-asides are always unlawful.
No. 5: Which of the following is NOT recommended in connection with an employer's DEI program?
- Promoting equal employment opportunity and eliminating discrimination in the workplace.
- Seeking to expand pools of qualified job applicants and internal candidates for promotion and other benefits.
- Establishing Employee Resource Groups that are open only to members of certain races or ethnicities.
- Offering leadership development to employees who have been disadvantaged in some way (for example, first-generation professionals or first-generation college graduates) without making distinctions by race, ethnicity, or sex.
- Reviewing employment practices for discrimination, and making the changes needed to eliminate the discrimination.
- Replacing the "old white boys' club" with a leadership program that is open only to employees of color.
ANSWER: C and F.
No. 6: Which of the following statements about Employee Resource Groups is true?
- It's all right to have an ERG based on race that is closed to members who are not of that race.
- ERGs should be open to any employee who wants to join and who shares the overall vision of the ERG.
- ERGs based on race, ethnicity, or sex always violate Title VII because they are per sediscriminatory.
ANSWER: B. It's fine to have ERGs based on race, ethnicity, or sex, as long as all employees who agree with the group's philosophy are eligible to join.
No. 7: DEI training could arguably create a hostile work environment if attendance is compulsory and if members of certain racial or ethnic groups, or one sex, are disparaged.
TRUE
FALSE
ANSWER: TRUE. As with all hostile work environment claims, a lot will depend on what exactly was said, and the context in which it was said. Under federal law, harassment has to be "severe or pervasive" to be legally actionable. But it is a possibility.
Whew! That was hard. In the immortal words of my law partner, Zan Blue, this IS rocket science.
HOW'DJA DO?
0-2 correct: Well, you know what? Congratulations for trying!
3-5 correct: Even a mediocre performance on this quiz makes you a star!
6-7 correct: You are a diversity genius! Take a bow!
Yes, you all did great! And here is that special gift that I promised you:
Don't get it?*
*You rule!!!
Have a great day!
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