Companies often ask: How can we avoid employment lawsuits? What tools exists? The answer is diversity. While well-honed separation agreements and antidiscrimination policies help, diversity in the workplace can be a strong lawsuit deterrent. The reason is fairly simple. A diverse workforce—especially at managerial levels—helps prevent the seeds of discrimination, harassment, and retaliation from taking root and helps prevent even the suggestion of unlawful acts. Developing a diverse and inclusive workplace is not only right morally, it’s good business practice.
Two years ago—right before the #MeToo movement took flight—the Equal Employment Opportunity Commission (EEOC) studied sexual harassment trainings and their effectiveness. The EEOC sought to understand why, with the ubiquity of online trainings, sexual harassment still affected almost every corner of the workplace. Among many other findings, the EEOC concluded that diversity is integral to preventing harassment. When a workforce is diverse—especially at executive and managerial levels—accountability increases, channels for reporting inappropriate conduct open, and the old boys club finds a new home outside the workplace, or nowhere at all.
This phenomenon is not unique to sexual harassment. Diversity creates a range of perspectives, leaving employers more likely to embrace and celebrate differences. Moreover, from the employee’s view, a diverse executive team reinforces the idea that management respects their values, culture and differences. Employees aren’t just protected by federal and state antidiscrimination laws; they’re part of an inclusive environment. That inclusion is vital. Discrimination lawsuits arise because an employee believes that his/her company acted with a discriminatory animus. With a truly diverse workforce, employees may be less inclined to think that a discriminatory or retaliatory intention instigated a company’s actions because they’ll know that their views are represented.
Steps to Diversity
Developing a diverse and inclusive workplace begins with hiring a diverse workforce. But it doesn’t end there. Employers should collaborate with a diverse range of vendors, service providers and business partners, including minority and women-owned businesses. Other diversity initiatives can include training, such as unconscious bias coaching and community involvement.
Employers should consider creating a diversity committee or task force. Short of hiring a diversity manager, a diversity committee reviews company policies and ensures that the company is working toward an inclusive environment. Company policies tend to be static and one-dimensional. Their purpose is to set a uniform course of conduct for all employees. A diversity committee can help a company develop policies that are not only principled, but that work for all employees. These groups should also investigate what glass ceilings exist at the company, conduct anonymous surveys, attempt to understand why some employees might feel singled out, and address the elephant in the room. It will also be important for everyone to review the task force in order to assess how it’s doing and whether real progress is being made.
Whatever diversity program a company initiates, it must ultimately be matched by a diverse senior management. Otherwise, the initiative will ring hollow. As of June 2018, just 5 percent of CEOs of Fortune 500 companies were female, with even fewer black CEOs. According to data gathered by the EEOC, black men in management increased from 3 percent to 3.3 percent between 1985 and 2014—a span of nearly 30 years.
Most Fortune 500 companies have diversity and inclusion programs, but to be effective those programs require diversity at top levels. According to the Harvard Business Review, most diversity programs fail because companies do the bare minimum—diversity training. Once social accountability enters the picture, diversity programs begin to thrive and the volume of employment-based lawsuits tends
Companies have a substantial amount to gain from diversity and inclusion programs, including a happier workforce and potentially fewer employment lawsuits. But a diversity program without real diversity will only fall flat. To be effective, companies need to actively strive for diversity and not settle for the illusion of it.
Brian J. Bouchard is an attorney at Sheehan Phinney in Manchester, focused on labor and employment, land use, and construction issues. He can be reached at 603-627-8118 or firstname.lastname@example.org.