Embedding Equality, Range, and Inclusion | Enterprise Regulation Immediately from ABA

We have been discussing the need for businesses to make public commitments to support equality, diversity, and inclusion (EDI).[1] These three related concepts are essential to a productive and happy workforce and a fair and just society for everyone. Equality comes from equal access to opportunities, free of discrimination. However, the full range of opportunities will only be available when there is respect for diversity and a willingness to include everyone in decisions regarding their lives. A related concept is social justice, which has been described as fair and just relations between an individual and society at large, as measured by the distribution of wealth opportunities for personal activity and social privileges.

Commitments are fine and necessary, but companies must do more by taking steps to embed EDI into their operations, decision making, and organizational culture and by making those values and norms part of the company’s DNA and the guiding principles for its employment policies and other business relationships. Changing the organizational culture is a difficult and challenging process that requires patience and attention to all phases of a worker’s journey through the company and the company’s relationships with customers, suppliers, and the members of the communities in which the company operates. Some of the steps that need to be taken were suggested by the International Labour Organization, which provided guidance on developing a corporate nondiscrimination and equality policy[2]: 

  • Make a strong commitment from the top by signaling that senior management assumes responsibility for equal employment issues and is committed to diversity, thus sending a strong message to other managers, supervisors, and workers.
  • Conduct an assessment to determine if discrimination is taking place within the organization.
  • Set up an organizational policy establishing clear procedures on nondiscrimination and equal opportunities and communicating the policy both internally and externally.
  • Provide training at all levels of the organization, in particular for those involved in recruitment and selection, as well as supervisors and managers, to help raise awareness and encourage people to take action against discrimination.
  • Support ongoing sensitization campaigns to combat stereotypes.
  • Set measurable goals and specific time frames to achieve objectives.
  • Monitor and quantify progress to identify exactly what improvements have been made.
  • Modify work organization and distribution of tasks as necessary to avoid negative effects on the treatment and advancement of particular groups of workers, including measures to allow workers to balance work and family responsibilities.
  • Ensure equal opportunity for skills development, including scheduling to allow maximum participation;
  • Address complaints, handle appeals, and provide recourse to employees in cases where discrimination is identified;
  • Encourage efforts in the community to build a climate of equal access to opportunities (e.g., adult education programs and the support of health and childcare services).
  • Set up bipartite bodies involving workers’ freely chosen representatives in order to determine priority areas and strategies, to counter bias in the workplace, and to ensure that all workers are committed to the organizational goals regarding diversity and nondiscrimination.

Iyer and Kirschenbaum noted that the EDI efforts of companies are often carried out separately from the business units that are primarily responsible for market expansion, the quality of customer service, or human resources. They encouraged companies to implement organizational structures and expectations of accountability that embedded EDI into operations, such as forming a permanent EDI working group or team with relevant experience and expertise drawn from throughout the company (e.g., engineers, data scientists, researchers, designers). They also suggested that companies focus exclusively on advancing inclusion and rooting out bias in key activities such as product design, marketing, and customer service. Similarly, hourly employees, women, and people of color need to be given a voice in the creation, implementation, and assessment of all employment-related processes. The working group created to develop the company’s commitments to action regarding racial equality and justice should also be involved in organizational change initiatives.[3]

Ideas about the composition of the EDI working group and the manner in which it carries out its responsibilities can be gleaned from Lee’s suggestions regarding the formation of a staff-led taskforce, working, or committee on EDI.[4] Lee’s first suggestion related to the composition of the group and the need to ensure that it includes a diverse team of employees so that discussions and actions will take into account the wide range of viewpoints throughout the workplace. Certainly, passion for EDI is an important qualification for serving within the group, and anyone who can bring that kind of energy to the issues should be considered. At the same time, an effort must be made to identify underrepresented groups and not only bring them on to the team but also consider why employees might be reluctant to participate. In addition to ensuring that the composition of the group is racially and ethnically diverse, there should be representation from all levels in the organizational hierarchy and from each of the key business groups or departments.

Another suggestion Lee offered was to establish clear goals, roles, and relationships in order to define the group’s scope of work and the way it operates internally and relates to those leaders with the authority to implement the group’s recommended actions. In general, members of the working group will still be expected to fulfill their regular day-to-day responsibilities, and so they will have only limited time to invest in the group’s activities. As such, consensus should be reached on which EDI issues are most pressing for the company. This process should begin with sharing stories and experiences with the members of the group, but the group should also go outside its own boundaries and seek input from other employees. Once the issues have been identified, the group needs to consider its internal and external capacities to do the work necessary to make an impact on each issue (e.g., are there members of the group with specific experience and skills that can be leveraged to develop effective solutions for an issue?) and make decisions about which issues the group can most influence. 

Lee’s suggestions were focused on what would initially be a largely volunteer effort organized and supported by the company that depended on employees willing to commit time to the working group, in addition to their other duties to the company. In contrast, Iyer and Kirschenbaum called for companies to form a permanent, full-time EDI working group or team. This would mean that members would be pulled off their previous assignments and be required to spend all of their time working on EDI issues with experienced colleagues from other divisions of the company.[5] The decision depends on a variety of factors, notably the size of the company and the ability of the company to reallocate resources to a full-time group. It might be best to start with a voluntary group, properly staffed and operating with the explicit and public support of the company’s leaders, and then determine how best to integrate the EDI working group into the company’s permanent organizational structure. While having a full-time team working on EDI issues is useful, care must be taken to ensure that the team continues to work well with the relevant departments and business units and that steps are taken to embed EDI directly into those groups.

Racial equality in the workplace cannot be achieved unless and until everyone in the organization appreciates and respects the diverse experiences of their colleagues and understands that diversity and inclusion will lead to a stronger organizational culture, a vibrant working environment. and an engine for innovative products and services that will support a sustainable enterprise. Racial discrimination in the workplace is an extremely sensitive issue that sometimes requires painful personal introspection and difficult conversations. Nonetheless, business leaders need to understand that racism can and will damage their companies in a number of ways. Certainly, racial discrimination will expose the company to potential legal liabilities, but even more corrosive is the role racism can play in dividing the workforce and undermining morale, teamwork, and productivity. In addition, in a world in which news spreads quickly over social media, incidents of racial discrimination can instantly and permanently tarnish a company’s reputation and brand, causing it to lose customers and making it more difficult for the company to recruit, engage, and retain diverse talent.

Racial equity training involves tackling sensitive issues such as internalized racial stereotypes and “unconscious bias,” which may affect decisions made within organizations as well as employees’ communication with one another in the workplace. Training sessions should be set up in ways that promote open and safe discussions about racism. Research indicates that companies that are willing and able to facilitate dialogue succeed in building stronger bonds and greater understanding. It should be expected that white employees who are challenged on their race-related beliefs during the training sessions will act defensively, often expressing emotions such as fear, anger, and guilt. They may also have concerns about how proposed diversity and inclusivity actions might undermine their historical “white privilege” and the opportunities and access to resources they have been accustomed to. Concerns from all sides need to be aired, but debating should be avoided, and all employees, regardless of race, need to clearly understand what is at stake and what their lives in the workplace will be like once changes have been implemented. It is at this point that all employees need to be educated and reassured about the benefits to everyone in the company from setting aside inequitable practices.

Racial equity training alone will not guarantee success, but it is an essential tool for establishing and continuing dialogue. Certain elements of the training need to be mandatory in order to demonstrate that the company has taken steps to ensure that all employees are aware of both their duties under the law and the company’s own internal policies and codes of conduct. Participation in training may also be required by business partners who are generally anxious to avert reputational damage from any association with companies that fail to promote a diverse and inclusive workplace free from racial discrimination. According to the Society for Human Resource Management (SHRM), companies should offer additional training and opportunities for dialogue beyond the mandatory sessions. In addition, SHRM recommends not making attendance compulsory since people who do not want to be there will often undermine the value of the meetings by displaying hostile or defensive actions. The training sessions should be led by experienced facilitators and should begin with an explanation of the ground rules for discussions so that everyone feels comfortable sharing their experiences and opinions. SHRM encourages companies to make learning interactive and experiential, avoiding long lectures from someone in the front of the room at a podium and ensuring that everyone walks out of the room armed with practical steps that they can immediately begin using to overcome unconscious bias.[6]

[1] Alan S. Gutterman is a business counselor and prolific author of practical guidance and tools for legal and financial professionals, managers, entrepreneurs, and investors on topics including sustainable entrepreneurship, leadership and management, business law and transactions, international law, and business and technology management. He is the co-editor and contributing author of several books published by the ABA Business Law Section, including The Lawyer’s Corporate Social Responsibility Deskbook, Emerging Companies Guide (3rd Edition) and Business and Human Rights: A Practitioner’s Guide for Legal Professionals. Alan is also currently a partner of GCA Law Partners LLP in Mountain View, California (www.gcalaw.com). More information about Alan and his work is available at his personal website at www.alangutterman.com. This article is adapted from the chapter on Racial Equality and Non-Discrimination, which was recently released on his website: https://alangutterman.com/wp-content/uploads/2020/07/EDI-_C1-Racial-Equality-and-Non-Discrimination.pdf.

[2] Questions and Answers on Business, Discrimination and Equality, International Labour Organization, https://www.ilo.org/empent/areas/business-helpdesk/faqs/WCMS_DOC_ENT_HLP_BDE_FAQ_EN/lang–en/index.htm#Q8

[3] L. Iyer and J. Kirschenbaum, How Companies Can Advance Racial Equity and Create Business Growth (April 8, 2019), https://www.fsg.org/blog/how-companies-can-advance-racial-equity-and-create-business-growth.

[4] Y. Lee, Diversity, Equity and Inclusion in the Workplace | Tips for Starting a DEI Committee, Idealist (July 18, 2019), https://www.idealist.org/en/careers/diversity-equity-inclusion-committee.

[5] L. Iyer and J. Kirschenbaum, How Companies Can Advance Racial Equity and Create Business Growth (April 8, 2019), https://www.fsg.org/blog/how-companies-can-advance-racial-equity-and-create-business-growth.

[6] A. Hirsch, “Taking Steps to Eliminate Racism in the Workplace”, Society for Human Resource Management (October 22, 2018), https://www.shrm.org/resourcesandtools/hr-topics/behavioral-competencies/global-and-cultural-effectiveness/pages/taking-steps-to-eliminate-racism-in-the-workplace.aspx

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