In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, et al., the Supreme Court of the United States dealt a heavy blow to diversity initiatives by ruling that admissions practices at Harvard University and the University of North Carolina, which considered race as a factor in their admissions processes, violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.

But employers need not shelve their diversity, equity, and inclusion initiatives. Indeed, employers can and should continue to commit to developing targeted diversity, equity, and inclusion in hiring practices and other programs within the workplace that directly benefit all employees.

Despite this setback to DEI overall, employers can continue to implement programs and foster DEI through a number of ways.

Recruitment & Hiring Practices

Companies can foster DEI initiatives by simply implementing equitable hiring practices. By no means an "affirmative action program," these practices can be simple changes that invite diverse candidates to apply and eliminate biases in the hiring process.

Examples of unbiased hiring practices:

  •  Implementing a blind and/or third-party review process so identifying information is removed
  •  Ensuring job postings are accessible
  •  Developing inclusive job descriptions
  •  Actively recruiting on websites or other sources in which underrepresented groups participate to encourage adequate representation in the candidate pool.

Development of Robust EEO & DEI Policies

Promoting DEI can be as simple as changing and further developing a company's policies and procedures. Employers should incorporate robust policies in their company handbook and make those policies part of the training of new and current employees. These policies might include the following.

Antidiscrimination and Anti-Harassment Policies

An employer's antidiscrimination and anti-harassment policies should venture beyond a mere acknowledgement that the employer does not permit discrimination or harassment in the workplace. Employers also should implement detailed policies as to a reporting procedure so employees are comfortable reporting such discrimination and/or harassment to management and that they understand the investigative process.

Reasonable Accommodation Policies

Employers are required by law to provide reasonable accommodations to employees under the Americans with Disabilities Act. An accommodation is "any change in the work environment in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities."

Up to 27% of adults in the US have some type of physical, mental, or psychological disability, yet many companies do not have clear policies related to requesting accommodations. Creating a clear process that is easy to follow and encourages open communication, ideally with a designated human resources representative, will help ensure that accessibility is incorporated in a company's DEI efforts. Additionally, building flexibility into policies such as break times, remote opportunities, work hours, and so forth—to the extent they are feasible for the position and type of work—can help improve DEI initiatives relating to disability.

Parental Leave, Return to Work & Lactation Policies

These "family friendly" policies are best implemented to provide support beyond the scope of paid maternity leave in recognition of the changing landscape of dual-income homes and the division of labor in the household. It also takes into consideration adoption or childbirth in a same-sex relationship where one individual—or a surrogate—carried the child. Additionally, it provides a more equitable playing field once an employee returns to work.

Employers can further foster equity for nursing employees upon their return. The Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act—also known as the PUMP Act—was implemented on Dec. 29, 2022, and requires that lactating employees receive reasonable break times and a private place, other than a bathroom, to express breast milk while working. And employers can further support lactating employees by developing policies that enable them to modify their schedule and provide other options that will allow them to work and attend to their lactating needs.

Management should be well trained in all DEI policies, know how to identify need and potential claims, and know how to implement the policies effectively.

Promote & Focus on Pay Equity

Due to historical inequities across various groups, pay gaps are still prevalent. For example, according to a study by Pew Research, the gender gap in pay has remained essentially the same over the past two decades. In 2022, women employees earned an average of only 82% of what men earned. These results are nearly identical to the pay gap 20 years before in which women earned 80% of what men earned.

To foster DEI, employers must focus on ensuring that employees earn equitable salaries. Employers can create a more neutral policy by establishing pay brackets that are clearly defined by position, level or certain other criteria that can be specifically measured by credentials or designated merits.

Additionally, employers should not ask candidates about their salary history. Seeking salary history, in addition to being prohibited by law in some states, has been shown to reinforce pay inequity as marginalized groups continue to be paid at a lower salary based on the lower salary shown in their history.

Bias Training

Bias and stereotyping can negatively impact a company and stifle DEI efforts. The bias does not have to be intentional—implicit or "unconscious" bias are equally problematic. Unconscious bias is a stereotype about other groups of individuals that one forms outside conscious awareness. In other words, someone is entirely unaware that they are stereotyping another individual based on that individual's race, ethnicity, sex, age, religion and so forth. Not only does unconscious bias create a polarized workplace, but in many circumstances the actions can be deemed a violation of Title VII of the Civil Rights Act and other federal, state and local antidiscrimination statutes.

To combat unconscious bias, employers should offer training to employees to raise awareness of unconscious bias in the workplace and implement strategies for employees to identify and correct these biases before they can become a problem. A single session is not sufficient. Employers should conduct training on a yearly basis and require all employees—regardless of title—to attend.

Employee Resource Groups

Employee resource groups (ERGs) generally are organized around specific social groups and identities, such as race, gender or sexual orientation. ERGs promote DEI initiatives in the workplace, often by implementing seminars or trainings focused on the group's unique goals and concerns and providing an overall sense of community.

Originally published by Bloomberg Law

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