By Kim Pogue Jenkins, Esq.

Baer & Timberlake,P.C.*

USFN Member (OK)

USFN’s most recent Diversity, Equity, and Inclusion Briefing Series on December 12, 2023, focused on The DEI Outlook for 2024 and Forward: How to Navigate the Changing Climates. The three panelists presenting were Greg Campbell, a partner at Aldridge Pite, LLP, who spoke about the current state of DEI; Emily Bartekoske, a Senior Partner at SouthLaw, P.C., who addressed lesser-known DEI categories; and Marisa Myers Cohen, shareholder at McCabe, Weisberg & Conway, LLC, who presented DEI recruiting tips and tricks. All in all, while there have been some recent setbacks to corporate DEI initiatives, it is still a priority for employees and employers. Here’s a brief recap of what our panelists shared during the Briefing.

Current State of DEI

Greg Campbell began by acknowledging slowing DEI momentum over the past year, in contrast to the 2020 surge of companies implementing DEI policies and departments. One reason for the 2020 wave was the death of George Floyd and the attention it brought to DEI. Another reason was pandemic legislation, like the CARES Act, which made money available to fund DEI programs. From July 2020 to July 2021, job postings with DEI in the title jumped 92%.

However, since last July, DEI job postings dropped by 38%. What could account for the shift? Financial factors, such as the end of the CARES Act, recession, slower growth, and higher interest rates. The bottom line remains a major consideration for businesses, along with attracting the best talent, fostering innovation, and employee retention. Legal pressure is another factor. The Supreme Court ruling in Students for Fair Admissions v. Harvard held that the policies at Harvard and the University of North Carolina violated the Equal Protection Clause by considering race in admissions. While this ruling only affected universities, many businesses and law firms believed that they might be targeted next, and they were correct. American Alliance of Equal Rights sent threatening letters to seven top law firms demanding that they halt their diversity fellowship programs, saying they exclude qualified white and Asian students. Additionally, at least five state Attorneys General have sent letters to the top 100 law firms in the country demanding a reevaluation of DEI policies. Many companies have started ditching their DEI programs to avoid potential legal trouble or are laying off their DEI-focused positions in these challenging economic times.

Companies who rescind their DEI programs may lose talent, as employees question if the company ever really intended to be inclusive or if they just wanted to appear that way when it was socially beneficial.

Campbell then switched gears to address why some are hesitant to speak out about DEI issues. Reasons include a fear of doing or saying the wrong thing or a fear of negative repercussions from co-workers. He also addressed “reverse belonging,” when a person does not feel like they can join a group or event if they are not in an underrepresented category. He stressed that anyone who is an ally is welcome in USFN DEI events and programs, and he urged those interested in DEI to continue to engage and learn, read articles in USFN publications, and attend webinars like this one.

Lesser-known DEI Categories

Emily Bartekoske began this presentation by acknowledging the widespread action on categories like sex, sexual orientation, gender identity, race, ethnicity, or religion before noting that DEI is also applicable to lesser-known categories. These can include cognitive diversity, age, education, language, physical ability, class diversity, invisible disabilities, geographical location, socioeconomic status, and family status.

The first focus was on age. We typically think about discrimination against older workers but we also need to avoid making hurtful generalizations about younger generations. We often look at this issue through a defensive lens, to avoid a lawsuit, but this presentation encouraged us to instead use a lens of inclusion. We can and should actively celebrate and encourage the unique skill sets that differing age groups bring.

How can firms and servicers implement this suggestion and create a welcoming and inclusive environment for all employees? First, by updating company policies and by providing anti-bias training that doesn’t promote stereotypes. They can also encourage multigenerational collaboration on projects, and mentoring programs which go in both directions: older workers mentoring younger workers, and vice versa.

Physical ability was also addressed. Again, firms should look through the lens of inclusivity. Ask employees if they are facing any challenges in this area at work. Consider that many physical challenges are not visible. A person may have trouble lifting or standing. They may suffer from chronic pain or an autoimmune disorder. Think about these challenges when planning events. A golf outing as a reward is fun for some, but it can also exclude some members from participating. Businesses can also offer nontraditional accommodation, like extended breaks or flexible schedules.

Cognitive Diversity is defined as the variety of ways in which people think, process information, problem-solve, and make decisions. Neurodiversity includes ADHD, autism spectrum disorder, or dyslexia. Fifteen to twenty percent of people are neurodivergent. Businesses want to make employees feel welcome and included, and to maximize their learning and productivity. To accomplish this, they must identify the learning styles of employees and accommodate them in training and communication. They should also review their hiring process to remove unnecessary steps that can cause stress for many. Consider providing interview questions ahead of time to reduce anxiety and allow for better preparation. Providing nontraditional accommodations like quiet workspaces, headphones, or low-sensory areas where an overwhelmed person can go to self-regulate, can greatly benefit neurodivergent employees. Finally, check in regularly to make sure employees are not headed toward burnout. Acceptance of diversity should be promoted from the top down to eliminate stigma.

DEI Recruiting Tips and Tricks

Companies that maintain a sustained commitment to DEI will reap the rewards and intangible benefits by attracting high-quality job seekers. Businesses should collect employee data and then compare the statistics to those demographics in your state or county to know how they are doing on DEI.

Companies should make sure that they are looking both at the current employees and those who will be hired. Job descriptions should be free from targeting certain ages and free from exclusionary language. Recognize bias in the hiring process and advertising of jobs.

Ask yourself and your team questions such as does this position really need a college degree or a lot of work experience?

Make sure interviewers are not asking improper questions about age, national origin, sexual orientation, or family status. If possible, have a diverse team of interviewers, ideally including other employees and not just management or top-level executives. Using an interview script can help to eliminate both implicit and affinity bias. Implicit bias is a negative attitude, of which one is not consciously aware, against a specific social group. Affinity bias is the tendency to act favorably toward people who have grown up in a similar manner as the interviewer. Avoid questions like “Do you golf?” While this question might create a connection between the interviewer and interviewee, it may also have the reverse effect due to affinity bias.

In summary, businesses should capture the appropriate data, look at it through the various lenses, and remember that a commitment to DEI will help them both hire and retain talent, and provide an inclusive and welcoming workspace.

Save the Date: NEW USFNgage Series

The Four Pillars of Diversity, Equity, and Inclusion

Tuesday, Feb. 13, 1-2:30 pm CT

In these brand-new virtual webinar programs, USFNgage sessions will be set up as a Zoom meeting format where speakers will engage directly with participants face-to-face. Participants should come prepared to enable their video, unmute themselves, and to engage with our speakers and fellow participants through group conversations and smaller breakout discussions. Registration for this event will open soon.

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USFNews - January, 10, 2024

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