While the topic of diversity and inclusion (D&I) in the workplace is not new, the events of the past year have amplified the desire for employees and employers to create formalized D&I programs in the workplace. Though the motives for creating these programs may be well-intentioned, employers still need to understand certain guidelines before launching a D&I initiative, especially as the Biden administration modifies labor and employment regulations. Jackson Walker Labor & Employment attorneys Jamila Brinson and Michelle Miller discuss some of the basic issues for employers to know before creating a formal D&I program.

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Greg Lambert: Hey, everyone. I’m Greg Lambert, it’s February 9th, and this is Jackson Walker Fast Takes. The issue of diversity and inclusion in the workplace is not a new topic. The events of the past year have amplified the desire for employees and employers to create formalized diversity and inclusion programs, or D&I programs, in the workplace. While the motives for creating D&I programs in the workplace may be well intentioned, there are still some guidelines that employers need to understand when wanting to launch a D&I initiative. I asked Jackson Walker Labor & Employment attorneys Jamila Brinson and Michelle Miller to come on to the show and discuss some of the basic issues employers need to understand before creating a formal diversity and inclusion program.

Jamila and Michelle, thanks for taking the time to talk with me.

Jamila Brinson: Thank you, Greg. Happy to be here.

Michelle Miller:  Great to be here, Greg.

Greg Lambert: Before we jump into the main discussion. Jamila, I would like to get you to quickly talk about the Diversity & Inclusion subgroup practice that you’ve recently launched at Jackson Walker.

Jamila Brinson: Sure. Jackson Walker employment attorneys often counsel clients on how to adhere to workplace laws and regulations. That’s just something that we do as a part of our practice. In addition, our attorneys also work with our clients to incorporate or implement diversity and inclusion strategy or concepts into their overall company goals or their programming. I don’t think that’s something as well known that Jackson Walker assists our clients with. So, we wanted to formalize a subgroup, a Diversity & Inclusion Counseling subgroup, so that our clients and potential clients know that we’re here, we understand that D&I is a business imperative for a lot of employers, and that Jackson Walker is here to help them achieve their goals.

Greg Lambert: On the topic of diversity and inclusion programs—I know this may sound a bit basic, but I’m going to ask it anyway—Jamila, can you explain what is a diversity and inclusion program?

Jamila Brinson: Sure. So, diversity and inclusion goes a step further than just having laws and regulations and policies that adhere to those laws and regulations surrounding equal employment opportunity and affirmative action or affirmative employment. It is focused on a multifaceted strategy that a company can implement to ensure that its workplace truly represents and supports workers of all backgrounds, and provides an institutional support for diverse workers to enter the workplace, to succeed, and to thrive. One of the issues our companies tend to have is retaining diverse talent. So, having a diversity and inclusion program where you’re focused on understanding that workers – there are differences that exist. Workers may have certain biases against other categories of individuals, but that’s not necessarily a bad thing. Now, what needs to be done is for the company to ensure that they understand what those biases are, what the culture of their firm is, to then implement this type of strategy focused on taking the best of the workers, bringing out their full potential, so that the workers can benefit and the employer as well.

Greg Lambert: Great, thanks for laying the groundwork for me on that. So, Jamila, staying with you, why is having a D&I program important for employers?

Jamila Brinson: It’s important, not just because – and we think all employers understand this – there is definitely a legal risk and legal liability there if employment laws are not adhered to, but also just the overall morale of employees. Having a robust diversity and inclusion program is important, because it creates an inclusive and welcoming workplace that respects and celebrates the differences among employees, and also helps employees to understand how they can work through those differences to work well together and to collaborate for the benefit of their development as employees, as well as the overall business of the company. Having a strong robust D&I program is something that a lot of employers have done, but there are some who kind of have started pieces of programs, but it’s something that employers should definitely explore and do it now.

Greg Lambert: Michelle, thanks for being patient while we laid the groundwork there. So, let’s say I’m an employer and I’m ready to launch my D&I program. What’s that gonna look like?

Michelle Miller: Well, Greg, the thing that you have to understand about D&I programs is that it’s really important for employers to understand that there’s not a one-size-fits-all program. These are very, very personalized approaches. The best approach is going to be a personalized approach, which considers the company’s culture, which considers the company’s finances, the business that they’re in, even the city that they’re in. It’s important to understand that you have companies that are going to be very, very diverse and some that may not be as diverse. For instance, a trucking company isn’t going to use the same approach as maybe a financial investment firm. That’s the key to any really good and successful D&I program. The other thing depends on really where the company is. They may have components already. For instance, you know, during the Obama administration, they may have remnants of a plan that they had back when President Obama was in office, and they might just need to review those and update what they’ve got. They might need to start from anew. They might just need to freshen things up.

To begin with one of the most important things that you have to consider when you’re starting a plan—and I’ll give you just some basics in what we think a company will need, and just keeping in mind that these are not comprehensive. Again, it has to be individualized. The first thing that we think is important is it’s really a good time to check to see whether or not the policies that you already have working in the company still comply to the laws, your regulations or policies comply with what President Biden is initiating now. It’s really important to stay up-to-date on those things and to conduct that cultural assessment. So, the basis when you’re starting out with this kind of program is to conduct an impartial and critical assessment of your organization. Here’s where it’s really important to be brutally honest, develop some goals, develop some metrics once you conduct that assessment, and from there moving forward, you can develop a clear strategy and goals.

The most important thing for any D&I program, even before you start developing those goals and metrics is to start with a basis of understanding. Any good trainer, any good employment attorney is going to tell you that it’s okay to understand and hear your employees when they have biases. People sometimes get very uncomfortable when they hear people with biases against any group, but you’ve got to understand that that is normal. If you kind of come at these kinds of programs with that initial understanding, understand things such as microaggressions, unconscious biases, those kinds of things, then it opens up the floor to a lot more cultural understanding. So begin with that, develop those goals and metrics, and then you’re going to develop a plan. You’re going to have a timeline. Look at your hiring program, your promotion program, your salary practices, and develop a plan on how to improve on all those. We think it’s important to assign accountability, management on all levels have to be accountable for those numbers. At that point, you’re going to start making changes.

When you’re making changes, one of the things that we’ve noticed with training programs and things like that is a lot of companies have not revitalized their training programs. They are still conducting sexual discrimination/harassment programs once a year. Everybody goes into a 30-minute training, they sign off on a piece of paper, and the company says, “Okay, you’re trained, we’re protected.” That’s not going to do it anymore. It’s just not. Training has to involve all levels of employees, everyone from CEOs to line workers, in the training together. We think it’s important to vary the training. Don’t have that mandatory lecture once a year, this is ineffective. Honestly, most employees don’t like it and they don’t listen to it. So, we want you to use a series of initiatives – mentoring, networking groups, small group instruction. There’s so many different kinds of ways that you can get your workforce individually involved.

The most important thing is always to tie that training to the vision and the mission of the company. With regard to complaint systems, you, again, you’re not going to just have one person in HR who takes the complaint and writes up a memo, sticks it in the file. That’s not what we want to see. We want to see office programs, grievance committees, peer reviews, there’s so many different types of complaint systems that really work much better now.

Strengthening the company’s anti-discrimination program is important. Being transparent is also part of your plan. Share your assessment and your goals and the metrics with the employees. Involve everyone. Make it known who the decisionmakers are. Make sure that the complaint system, the training, and the policies involve everybody and they’re transparent so everybody knows who’s doing what and what steps and processes are used to arrive at the decisions on hiring, promotion, and salaries. That’s really going to be protective of the company.

Like I said, the most important part of your plan is going to be a personalized approach – build from what you’ve got. Most companies will already have something, so you can build on that or you can start new. Just make sure that it’s up-to-date with all the laws and the regulations, and make sure that you’re keeping up to date with what President Biden’s doing.

Greg Lambert: Speaking of that, how is President Biden’s administration and their approach to D&I going to change the way companies have to approach their own D&I programs in the workplace?

Michelle Miller: Here, I think it’s going to be very, very critical for companies to make sure that they keep up to date with what President Biden is doing. He has already enacted three executive orders – each one based on discrimination. Executive Order 13988 has to do with gender identity and sexual orientation. 13985 has to do with racial equality and support for underserved communities. 14004 for enabling all qualified Americans to serve their country in uniform – that has to do with gender identity.

He has made it very clear that his administration is going to make sweeping changes when it comes to discrimination policies. So, it’s going to be critical for companies to keep up-to-date on what he’s doing. He’s already said that he hopes to sign the Equality Act within the first 100 days in office. Keeping up with those laws is going to be very, very important. Again, it goes to updating your any kind of D&I policy or any kind of discrimination policies that you already have.

Greg Lambert: Well, Jamila Brinson and Michelle Miller, I thank you both for taking the time to walk us through this diversity and inclusion program primer. Thanks again for coming on the show.

Jamila Brinson: Thank you, Greg.

Michelle Miller: Thank you, Greg.

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