Given the U.S. executive orders and strong anti-DEI stance, many corporate leaders are fearful about the legality of continuing their diversity, equity and inclusion work. To better understand what parts of work are legal and what parts are not (and have never been), it is important to engage legal counsel.
Kenji Yoshino, David Glasgow and Christina Joseph at the NYU School of Law Meltzer Center for Diversity, Inclusion, and Belonging distill this legal complexity into a simple “three P model.”. For diversity, equity or inclusion work to be deemed illegal, it must grant “a preference to a protected group with respect to a palpable benefit.” In other words, if the work is not exclusionary to certain groups, and does not provide special benefits to some groups over others, it is most likely legal.
In my interview with attorney Nirupa Netram, CEO at Lotus Solutions, she clarified the three legitimate legal challenges to diversity, equity and inclusion work.
- Quotas
- Mandatory training
- Anti-meritocracy
Quotas
Quotas have never been legal in the U.S., according to anti-discrimination law. Quotas are not a best practice of inclusion and are rarely recommended by inclusion practitioners. Netram notes, “I believe that companies in the U.S. should refrain from using quotas related to race, gender or other protected characteristics. Such practices may expose businesses to substantial legal risks and potentially violate federal and state laws governing topics like anti-discrimination. Each organization should consult its legal counsel for specific guidance on the legality of quotas.”
An inclusive and often legal approach is to have aspirational goals. Quotas can create a sentiment that people are only hired, promoted or considered because of their identity, not because of their talents. This can create more harm than good with tokenism and negative feelings from dominant group members who feel like they may be overlooked and just as qualified. It also feeds the false narrative that diverse talent is somehow less qualified.
In the midst of the social justice movement of 2020, many organizations realized they weren’t as inclusive as they had hoped to be and wanted to fast forward that process by setting goals to diversify their leadership teams, boards and hiring processes. While this was often with good intentions, the harmful impact was it created an environment where people felt forced into hiring and promoting diverse talent, triggering a zero-sum game mentality where dominant group members felt like they were losing as a result of the focus on historically marginalized groups.
Mandatory Training
“Diversity, equity, and inclusion training should be voluntary rather than mandatory and tailored to each organization’s unique needs. Compulsory training can foster resentment, resistance, and backlash, undermining a company’s commitment to an inclusive workplace. Instead, cultivating a culture of voluntary participation, curiosity and continuous learning can lead to more profound and enduring changes in behaviors and attitudes,” Netram recommends.
Mandatory training often elicits negative feelings. It conjures up memories of mandatory sexual harassment or other punitive training. It rarely accomplishes the goal of creating an inclusive environment. Serving as a check-the-box, one-and-done or annual activity, this approach has little positive impact and is more likely to have a negative impact.
In the 10 years I have done inclusion training, it was rarely mandatory. However, after the events of the summer of 2020, many organizations made the training mandatory despite practitioners’ guidance of the opposite. This was another well-intentioned, yet harmful decision that created a backlash and a proliferation of strong naysayers. This relatively small (estimated to be 10% of the population), yet loud group, often commented that they felt like they were being told how to think. This does not help the cause for inclusion; it further distances people.
Instead, have highly recommended training or have an optional menu of topics for people to choose the type of inclusion training that will help them with their career goals. Allyship programming is 100% legal and often benefits all groups engaged.
Anti-Meritocracy
There is a reason that much of the pushback has centered around meritocracy. In my home state of Indiana, the new governor rebranded the office of equity and inclusion to one focused on meritocracy, excellence and innovation.
“True meritocracy posits that individuals succeed based on their abilities, talents, and effort. The principle is commendable. However, it is essential to contextualize it within the broader framework of equity to ensure that everyone has a fair and equal opportunity for success. Historically, underrepresented groups often do not get these opportunities,” Netram highlights.
The myth of meritocracy is a framework that inclusion practitioners often use to educate people about the harmful effects of assuming everyone has the same opportunity to exceed. The reality is that there are unearned advantages people have by way of identity and privileges they inherit from past generations. That’s not anyone’s fault—inclusion work is about ensuring that all people have equal access to those opportunities. Instead of using words like meritocracy, emphasize words like opportunities, inclusion and allyship instead.
If your organization is at a standstill because people are wondering what is legal and what is not legal, leverage the “3 P” framework, ensuring the work does not have a preference to a protected group with respect to a palpable benefit. Consider a list of activities that should be legally safe for the foreseeable future:
- Aspirational goals for diverse representation that mirrors the communities you hope to serve.
- Hiring from a broad array of institutions to ensure diverse talent is accessible.
- Highly recommended or optional inclusion training.
- Allyship programs.
- Mentorship and sponsorship programs open to all groups.
To do inclusion work legally, do not default to illegal and harmful quotas, mandatory training or anti-meritocracy messaging. Instead, focus on aspirational goals and highly recommended learning with an emphasis on access to opportunities for all.