By Benjamin E. Widener, Esq., Shareholder, Stark & Stark
Diversity and inclusion may feel like a relatively new development in the workplace, but this important initiative has been around longer than you might realize. “OK, if I have to do this, based on stereotypes that are totally untrue, and that I do not agree with, you would maybe not be a very good driver,” is the clue provided by Pam to Dwight during a cultural awareness exercise featured in the second episode of the iconic sitcom, The Office, which aired on March 29, 2005. “Diversity Day,” the name of that episode, illustrated how cultural diversity, inclusiveness, individuality and equality was lacking in the workplace. The show also highlighted how our viewpoints are influenced by stereotypes and our own unconscious bias. Through satire, the show emphasized the importance of promoting cultural awareness, diversity, individuality and inclusion in the workplace.
Though diversity and inclusion have become core competencies in HR, and while the importance of the D&I initiative in employment has become generally accepted, the D&I initiative is not rooted in the law. Federal law prohibits employment discrimination based on race, color, religion, sex (including pregnancy, childbirth and related medical conditions), disability, age (40 and older), citizenship, genetic information and national origin. Title VII of the Civil Rights Act of 1964 specifically makes it an unlawful employment practice for any employer to: (1) refuse to hire or fire any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) limit, segregate, or classify its employees or applicants in any way that would deprive any individual of employment opportunities or adversely affect his/her status as an employee, because of such individual’s race, color, religion, sex, or national origin.
The terms “diversity” and “inclusion” do not appear in Title VII, the Age Discrimination in Employment Act, or the Americans with Disabilities Act.
Many states have promulgated their own anti-discrimination analogs and, in doing so, have expanded on the classes and characteristics protected under state law. For example, the New Jersey Law Against Discrimination prohibits unlawful discrimination or harassment in employment based on race, creed, color, national origin, nationality, ancestry, sex, pregnancy, breastfeeding, sexual orientation, gender identity or expression, disability, familial status, marital status, domestic partnership/civil union status, liability for military service, and in some cases, atypical hereditary cellular or blood trait, genetic information and age. The California Department of Fair Employment and Housing similarly enforces laws that protect employees against illegal discrimination in harassment based on these same protected classes. Recently, many states have passed their own iterations of The Crown Act, which ensures protection against discrimination based on hair texture or protective styles.
Many of these state statutes are designed to foster inclusion and diversity in the workforce. None of these statutes, however, specifically reference or include either of those key terms.
So how exactly does diversity and inclusion fit into the legal paradigm, at least insofar as it relates to human resource best practices, anti-discrimination training and employment law?
First, it is important to understand what D&I is. Diversity and inclusion is not just a human resource program; it is an ideology. It is an initiative that must be embraced by an entire company. It is an initiative that should be reflected in the company’s mission, strategies and business practices, designed to support a diverse and inclusive workplace, and leveraged to achieve a competitive business advantage, all while creating an environment where every employee feels he/she is being treated fairly, has equal access to opportunity, is valued, has a sense of belonging, and feels like part of a team.
Diversity means more than just numbers on an EEO-1 Report, and it extends beyond legally protected characteristics. In essence, workplace diversity is understanding, accepting, and valuing the differences between employees. It is qualitative, not just quantitative. In her book “Going All-In,” Kathleen B. Nalty explains that diversity “encompasses a wide variety of human differences, including the more visible (e.g., race, age, gender, gender expression, ethnicity, disabilities, appearance, health) as well as those that are less apparent (e.g., religion, marital status, socio-economic status, lifestyle, education, parental status, geographic background, language ability, veteran status, occupational status).” Diversity can include differences in skill sets, personalities, experiences and knowledge bases.
Inclusion, on the other hand, is a practice that empowers individuality, ensures employees feel welcome and included, creates a collaborative, supportive and respectful environment that values the contribution of all employees, and integrates the differing perspectives of the employees into the organization. Inclusiveness is a matter of cultural integration, not assimilation.
Together, “diversity” and “inclusion” promote individuality and equal opportunity. Today, most employers recognize the benefits of a diverse workforce. To that end, employers can implement a number of generally accepted best practices and strategies, including but not limited to: demonstrating a commitment to diversity in leadership (at the C-suite level), which could include appointing a chief diversity officer; establishing a written D&I policy and providing D&I education and training (on topics like stereotypes and unconscious bias) to all employees; ensuring there is cultural diversity at all levels of the organization; having organizational flexibility, responsiveness and agility, especially in employee accommodation; creating employee resource groups as well as working groups to make employees feel included while promoting teamwork and collaboration; acknowledging multiple religious and cultural holidays and practices; and incorporating D&I strategies in recruitment, performance management, and leadership assessment.
Of course, implementing these practices and actually creating a multi-cultural, inclusive, welcoming workplace environment that unlocks the potential of greater diversity is much easier said than done. According to Andrew Botwin, founder of Strategy People Culture, LLC, which (among other services) provides anti-discrimination training and executive leadership coaching: “D&I matters can be conceptually simple, though complicated in practice. Organizations that develop their own approach towards effective D&I efforts must remember this is not a singular concept; while there is naturally some intersection between “diversity” and “inclusion,” addressing one without the other can lead to complications, frustrations and failed efforts.” Thus, employers often engage and rely on outside professionals or experts in the field to help them identify unconscious bias, break down barriers to diversity and inclusion, and successfully develop and implement their D&I initiative.
But, again, what are the legal implications of D&I in the workplace? Where does D&I converge with the law?
Though there may not be any statutory or legal mandate for D&I in the workplace, there are many places where diversity and inclusion is relevant to and intersects with the law. First and foremost, as indicated above, employers should adopt written diversity and inclusion policies and should strengthen their equal employment opportunity and anti-harassment policies and procedures to include D&I training and education. While courts have not yet required employers to have D&I policies to avail themselves of affirmative defenses to employee hostile work environment claims, such a requirement could be on the horizon, particularly in more progressive jurisdictions. Under federal law, it is well-settled that an employer may have an affirmative defense to employee claims of supervisor or co-worker sexual harassment (and other discrimination claims) where the employer has taken steps to eradicate discrimination from the workplace by (i) promulgating an anti-harassment and anti-discrimination policy, (ii) providing anti-harassment training and education for all employees, (iii) having an effective and practical grievance procedure for aggrieved and/or whistle-blower employees, and (iv) strictly enforcing these policies. Employers must have policies and procedures, but also must insist on effective enforcement to “practice what they preach” to avail themselves of this affirmative defense.
Today, D&I training can – and should – be implemented in tandem with anti-harassment and anti-discrimination training, and employers can – and should – establish interrelated EEO, anti-discrimination and D&I policies and procedures for their workforce to follow. While this may not be required by law, it is only a matter of time before this becomes the rule, not the exception.
For example, in the case of Williams v. E. I. DuPont de Nemours & Co., Case No. 2:15-CV-02111, 2016 U.S. Dist. LEXIS 132969, filed in the United States District Court for the Western District of Tennessee, the plaintiff alleged claims of harassment discrimination and retaliation in violation of Title VII. The defendant-employer sought judgment as a matter of law dismissing the plaintiff’s claims. In granting its motion, the court observed that DuPont had a “Code of Conduct” and a “Respect for People” policy by which all employees were bound. Both the Code of Conduct and the Respect for People policies included DuPont’s initiatives and practices related to diversity and inclusion, equal opportunity and non-discrimination, people treatment, non-retaliation, and freedom from harassment, among other things. The stated objective thereof was to “[s]trongly encourage those who believe they have been subjected to harassment, retaliation, discrimination, or mistreatment, to report any such incidents for appropriate management action.” To that end, the Code of Conduct and Respect for People policy both detail DuPont’s reporting and investigation process for reported mistreatment. Regardless of the method by which complaints were made, all complaints were sent to DuPont’s human resources department, and the investigation process was initiated. The process for reporting and investigating people treatment incidents was clearly communicated to employees during training and also posted at various spots throughout the workplace and on the human resources website.
The court noted it is well-settled that employers are not automatically liable for sexual harassment perpetrated by their employees, and employer liability “depends on the plaintiff showing the employer knew (or reasonably should have known) about the harassment but failed to take appropriate remedial action.” Here, DuPont had a policy prohibiting sexual harassment and a system in place to allow employees to report harassment. DuPont adhered to its policies and procedures and investigated the employee’s claim. The court found no evidence that DuPont engaged in unreasonable delays in conducting its investigations or displayed an indifference to the plaintiff-employee’s internal complaints. Thus, as a result, the court dismissed the employee’s case against her employer.
While not central to the court’s holding, the court’s reference to DuPont’s “Respect for People” policy and recognition of DuPont’s diversity and inclusion policies makes clear the court considered DuPont’s D&I policies and procedures, and DuPont’s adherence to those policies and execution of those procedures, in rendering its decision. This is the tip of the iceberg in how courts might recognize and, in time, set precedent about, the importance of inclusion and diversity in the workplace.
Another way in which D&I is intersecting with employment law is through the proffer of expert testimony in employment discrimination cases, as demonstrated by the case of Haydar v. Amazon Corp., LLC, Case No. 2:16-CV-13662, 2019 U.S. Dist. LEXIS 176148, filed in the United States District Court for the Eastern District of Michigan. Haydar, the employee, alleged discrimination on the basis of his Syrian descent and because he was Muslim. He contended his supervisor’s reference to “you people…,” which Haydar alleged was repeatedly made, supported his claim of disparate treatment. Amazon maintained that Haydar’s national origin and religion had nothing to do with the termination of his employment, but that he was fired for failing to follow company rules.
At trial, Haydar hoped to introduce evidence through the expert testimony of Donna Marie Blancero, Ph.D., who would opine about bias against Muslims, unconscious bias, the differences between “diversity” and “inclusion” in the workplace, and the proper procedures for investigating an employee’s complaint, among other things. Amazon challenged the admission of Dr. Blancero’s testimony on various grounds, such as flawed methodology and insufficient data. In large part, the court agreed with Amazon and excluded Dr. Blancero’s testimony from introduction at trial. Among other things, the court felt the concept of stereotypes was within the knowledge of a typical juror and expert testimony was not necessary on the subject. As for confirmation bias, the court found that Dr. Blancero’s opinion, that this was a “classic case of confirmation bias,” lacked an adequate factual foundation (actual data to support the conclusions she had drawn). The court also declined to permit Dr. Blancero to give testimony relating to diversity and inclusion and implicit bias. Though the court felt these were important concepts to consider, it held that Dr. Blancero lacked the factual basis to opine that Amazon perpetuated a culture favoring white men and a climate that was not inclusive of non-white men.
Furthermore, the court was not convinced that the concept of unconscious bias would help the jury decide the key issue of intentional discrimination in this case. The court reasoned that the jury will hear about the supervisor’s “you people” comments and would be able to compare how the supervisor (and others) viewed the leadership deficiencies of non-Muslims and non-Syrians and how they viewed Haydar’s own leadership deficiencies. From that evidence, according to the court, a jury is fully capable of inferring that the supervisor and/or others were (or were not) biased against Muslims or Syrians. Thus, with case-specific evidence, the jury did not need to hear from Dr. Blancero on the general concept that all people hold some type of unconscious bias. In reaching this conclusion, the court cited E.E.O.C. v. Wal-Mart Stores, Inc., Case No. 6:01-CV-339, 2010 U.S. Dist. LEXIS 13192 (E.D. Ky. Feb. 16, 2010) (“The burden . . . is on the plaintiff to prove that intentional discrimination occurred at this particular distribution center, not just that gender stereotyping or intentional discrimination is prevalent in the world.”).
While the court generally barred Dr. Blancero’s opinions, the court permitted Dr. Blancero to opine on the “Culture of Lack of Inclusion” section of her expert report. The court felt that this part of her expert opinion fell “solidly within her expertise” and that even if the “typical juror is familiar with the difference between diversity and inclusion, the reliability of Blancero’s testimony ensures that the only prejudice is a bit of trial time, not misinformation.”
The Haydar case demonstrates how the D&I can become relevant to a case through the introduction of expert testimony. Courts are divided about whether testimony of this type of evidence (on stereotyping, unconscious bias and the social sciences of diversity and inclusion) is admissible or not. On the one hand, courts that exclude this testimony tend to reason that data about unconscious stereotyping is too far removed from carefully considered, case-specific employment decisions to be helpful to juries, and they draw distinctions between unconscious stereotyping and “intentional discrimination” required to make out a Title VII claim. On the other hand, courts that allow this testimony note that jurors are not necessarily knowledgeable about these issues and hold that the testimony can give jurors a context within which to evaluate the evidence. Whether relevant and admissible or not, employers and their legal counsel are facing new challenges with respect to the introduction of D&I expert testimony and evidence in employment cases, which could create exposure to liability and drive up litigation costs.
Another nexus between D&I in the workplace and the law can be found in the exchange of discovery in employment discrimination cases. For example, in Moussouris v. Microsoft Corp., Case No. 15-CV-1483, 2018 U.S. Dist. LEXIS 34685, filed in the United States District Court for the Western District of Washington, former Microsoft employees alleged gender-based employment discrimination against the company. Microsoft deemed confidential and proprietary certain documents, including diversity initiatives, exchanged in the course of discovery in the action. According to Microsoft, diversity and inclusion was a business imperative. It argued its diversity initiatives were the equivalent of trade secrets for its business operations that gave the company an advantage over its competitors. Microsoft argued these initiates helped build an “emotional connection” its employees needed to demonstrate high levels of commitment and contribution. Microsoft also explained that its ability to foster greater diversity in the workforce and to recruit top diverse talent in a highly competitive labor market was imperative to its success. Thus, Microsoft argued that its diversity initiatives, strategies and representation data must be afforded the utmost protection and secrecy (and be filed under seal with the court) to prevent competitors from unjustly gaining access to these strategies and, in turn, recruit Microsoft’s talent. The court found Microsoft’s argument that its diversity initiatives, data and strategies were trade secrets to be very persuasive and supported by the facts, and thus they were afforded due protection and confidentiality. While not directly related to the importance of diversity and inclusion in the workplace, this case is instructive on how diversity and inclusion efforts and data can be used, treated and protected by employers, and also how that information can – and likely will – become the subject of discovery in an employment discrimination case.
In conclusion, there are a number of good reasons why an employer should build a diverse and inclusive workplace and create a harmonious environment for its workforce. This includes legal reasons that, while perhaps not yet mandated, may be considered by judges and juries in evaluating employment-related claims. Indeed, in time, whether an employer has adopted, effectively implemented and actually honored its D&I policies could be integral to a harassment, discrimination, or hostile work environment case analysis. In addition, D&I data and employee demographics may be discoverable in employment discrimination cases and, therefore, employers should take appropriate measures to safeguard this proprietary information. Lastly, diversity and inclusion in the workplace (or lack thereof) is ripe for expert testimony, so employers should embrace D&I in the workplace, create D&I policies, properly educate their employees on the importance of cultural diversity and inclusiveness and maintain records of these practices, procedures and D&I data to support (or refute) expert testimony in employment litigation.
Benjamin E. Widener is a shareholder in the Employment and Litigation practice groups at Stark & Stark (www.stark-stark.com), a Princeton, NJ, based law firm. Mr. Widener, chairman of the firm’s Labor & Employment Law Practice Group, represents his clients in all aspects of labor and employment law and concentrates his practice in employment-related counseling and litigation.
