Exclusive Interview with Conor J. Dale, Attorney at Law, Jackson Lewis P.C.

“Effective DEI Programs Require Sustained Commitment From Leaders And Senior Managers”

 

“Effective DEI programs require a sustained commitment from leaders and senior managers to try to ensure diversity throughout their organization from mailrooms to boardrooms. Effective diversity programs typically involve a company articulating specific DEI goals, supporting those goals with an integrated business strategy, and performing periodic assessments to evaluate company performance against those goals,” says Conor J. Dale is Attorney at Law at Jackson Lewis P.C.

Conor has experience representing employers in state and federal employment litigation including single-plaintiff discrimination, harassment, retaliation and breach of contract claims and wage and hour class action experience. In an exclusive interaction with HR.com, he talks about how to ensure diversity and inclusion during hiring, why is it important that leadership embraces DEI efforts and the key elements of an effective DEI program, among others. 

Excerpts from the interview:

Q: In 2020, we saw several high-profile instances of workplace discrimination. Why is discrimination still prevalent in workplaces?

Conor: Continued media attention on reports of serious allegations of discrimination and harassment in the workplace is based, in part, on employees having many more options and support networks to bring these allegations to the public. 

Many employers have, for example, voluntarily agreed to stop using compulsory arbitration agreements that require private resolution of allegations of discrimination or harassment in the workplace. Lawmakers have also taken affirmative steps to ensure transparency regarding claims of workplace discrimination; the California legislature passed a 2018 law that voids certain confidentiality clauses in settlement agreements restricting employees from discussing factual allegations of workplace sexual harassment or gender discrimination. 

Finally, due to changes in workplace culture, many employees are much more willing to speak up when they feel that they have been subjected to discrimination.  

I can tell you that many employers are very interested in taking steps to ensure that they have fair, equitable, and welcoming workplaces – resolving harassment or discrimination complaints can be very distracting and expensive. It is in employers’ general interest to proactively detect and resolving discrimination concerns to avoid these issues. The multiple avenues that employers themselves are now providing to address these concerns lead to more instances of the public and the media becoming aware of such complaints.

Q: What steps can employers take to ensure more diversity and inclusion in promotions and hiring?

Conor: Employers can, and have, taken affirmative steps in the past five years to try to ensure that their hiring and promotion practices encourage workplace diversity. For example, many employers are formally adopting into policy, or informally adopting into practice, a rule requiring a diverse pool of candidates to be interviewed for job vacancies and promotions. These applicants are, in turn, interviewed by panels of diverse company representatives so that there is a wide range of perspectives and experiences in the individuals who actually make hiring recommendations or decisions. Employers are also independently conduct audits and statistical reviews of their compensation practices to try to ensure that their pay structures are not having or perpetuating an unintentional discriminatory effect.  
 

State lawmakers have also taken affirmative steps to encourage diversity by mandating greater transparency in the application process. For example, as of 2018, California generally prohibits employers from asking about an applicant’s salary history and requires that employers provide pay ranges for a position. Colorado also recently passed a similar law requiring that all current employees be notified of promotional opportunities so everyone can compete for these positions, regardless of their background and internal company connections. Finally, a number of states are encouraging or simply requiring that corporate boards of directors have gender diversity.  

Q: What is the state of access to the law and justice when a person faces discrimination in the workplace? What is the state of protection against retaliation? 

Conor: An employee has, or should have, multiple options to raise concerns about discrimination in the workplace; California’s Department of Fair Employment and Housing requires that employers with five or more employees provide detailed written guidance to employees to raise internal complaints about discrimination so those concerns can be promptly investigated and resolved.  

Employees also have the right to raise complaints about workplace discrimination with third-party government agencies such as the Equal Employment Opportunity Commission. When in doubt, an employee should check their company handbook or HR policies as these usually list in detail each option to raise complaints about potential discrimination.

Multiple laws prohibit workplace retaliation; federal, and, where applicable, state and local laws specifically prohibit an employer from terminating, demoting, or involuntarily transferring an employee because the employee has raised concerns about discrimination in the workplace, even if those concerns are ultimately not substantiated.  

Employees have the same ability to raise concerns about retaliation as they do for discrimination.

Q: How important is it that leadership embraces diversity and inclusion for the success of such efforts?

Conor: Ultimately, diversity policies are just words on paper unless company leadership devotes resources to enforcing those policies and making it part of day-to-day workplace culture. Solutions that leadership teams have taken in the past few years to enforce and emphasize diversity goals include: (1) tying supervisors’ compensation packages to the diversity of their teams and promotional recommendations; (2) building and giving real budgets to diversity and inclusion officers or departments; (3) ensuring that diversity officers have a direct reporting relationship to a company’s CEO; and (4) providing employees with training from experts on topics such as implicit bias.  

Q: What are the key elements of effective diversity, equity, and inclusion (DEI) programs? 

Conor: Effective DEI programs require a sustained commitment from leaders and senior managers to try to ensure diversity throughout their organization from mailrooms to boardrooms. Effective diversity programs typically involve a company articulating specific DEI goals, supporting those goals with an integrated business strategy, and performing periodic assessments to evaluate company performance against those goals. 

As with any program, a company should provide training by internal or third-party experts to employees to assist in realizing company DEI goals and evaluate manager performance in reaching those goals.
 

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