At our latest HR Employment Law Update in January 2023, Beckstead Terry Ditto PLLC Employment Attorney Amy Beckstead made Diversity, Equity, and Inclusion (DEI) a primary focus. Here’s why:
“Most HR professionals define DEI to mean what it stands for – diversity, equity, and inclusion efforts to help ensure a discrimination- and harassment-free workplace,” Beckstead told attendees. “But what’s up is down, and what’s down is up in the Texas legislature.”
What does she mean? The recently passed Senate Bill 17, Responsibility of Governing Boards Regarding Diversity, Equity, and Inclusion Initiatives, which impacts the programs, training, and even offices that public colleges may have on their campus, uses a definition of DEI that is not in line with how most HR practitioners use the term. DEI under SB 17 means engaging in any of the following actions:
- Influencing hiring or employment practices with respect to race, sex, color, or ethnicity other than through the use of equal opportunity.
- Promoting differential treatment of or providing special benefits to individuals.
- Promoting policies or procedures about race, color, or ethnicity, except as expressly authorized by OGC in accordance with state law.
- Conducting trainings, programs, or activities about race, color, ethnicity, gender identity, or sexual orientation other than those expressly authorized by OGC in accordance with state law.
“‘Inclusion’ and ‘equity’ don’t actually mean that by the Texas legislature in this latest bill. When people say ‘DEI,’ check their definitions,” Beckstead warns. While SB17 only pertains to public universities in Texas, the fallout from this legislation has created a murkiness surrounding even the term “DEI.” The murkiness can be confusing for Texas employers trying to ensure their programs and policies for implementing both state and federal anti-discrimination laws are not misconstrued.
There is already some confusion at the federal level. The forthcoming US Supreme Court Decision in Muldrow v. City of St. Louis will be a huge one to watch. Beckstead points out that the decision will determine the scope of the “adverse action” requirement under Title VII.
“Muldrow involves a police sergeant transferred from one division to another – same pay, same title. However, the transfer changed the sergeant’s schedule, overtime opportunities, prestige, and comfort of work clothing. The question presented is whether a lateral job transfer without an accompanying change in pay or benefits equals an adverse action,” Beckstead explains. “DEI programs or other initiatives geared exclusively towards minority employees could potentially be challenged if the Supreme Court agrees with Muldrow because there would no longer be a requirement that employees provide evidence that they suffered a tangible adverse employment action, such as loss of pay or position, to assert a claim successfully.”
Beckstead went on to outline six steps Texas employers could consider to help safeguard against DEI-related claims. But take note: These tips involve much more than what we cover here. Consider them food for thought and a discussion starter with your employment attorney.
Tip One: Ensure company policy prohibits behavior that may not rise to the level of harassment or discrimination under the law. In other words, have a policy that addresses and prevents behavior before it rises to the level of unlawful harassment or discrimination. As part of this, you might include anti-discrimination and anti-harassment policies in your employee handbook (but don’t make it overly legal). For instance, focus on a respectful workplace and fostering a culture of kindness and respect.
Tip Two: Foster a culture of compliance. Your anti-discrimination and anti-harassment policy should be accessible to all employees, and those employees should be encouraged to raise their hands. As part of this, employees should be trained when hired and at least every two years (every year in some states).
Tip Three: Respond to complaints promptly and appropriately. All employees/supervisors should be trained to report complaints to HR immediately. A neutral, documented investigation and any necessary remedial measures should also be carried out promptly. Emphasize to supervisors that they should not try to address complaints independently, no matter how it’s presented to them. And advise the complainant that any complaint will be treated as confidential as possible, but do not guarantee confidentiality. Outline your procedure in your employment handbook from the start, so employees are aware of how to make complaints.
Tip Four: Tread carefully with DEI initiatives. It wasn’t long ago that DEI initiatives were encouraged, like aiming to have a certain percentage of women or minorities in STEM roles. The same applies to internship, scholarship, leadership, and mentor programs. These days, such initiatives could be problematic because they could be seen as limiting opportunities to specific underrepresented groups. Going forward, the focus should be on inclusion rather than diversity.
Tip Five: Focus efforts on robust recruiting. Many companies want a workplace that is reflective of their community, and that’s a great goal. While you should watch your language around DEI and be careful with positioning your recruitment materials, there’s nothing illegal about recruiting at Historically Black Colleges, Hispanic-serving institutions, tribal colleges and universities, and women’s colleges, for instance. Find ways to broaden your applicant pool when recruiting, evaluate job descriptions, and be conscious of potential bias in job postings, such as gendered language. “You can also shift to skills-based hiring that focuses on matching skills between job candidates and roles instead of focusing on one’s education and experience,” Beckstead says. “And consider focusing on criteria that aren’t race or gender specific, such as first-generation and economically disadvantaged candidates.”
Tip Six: Focus on time-proven mechanisms to ensure individuals are treated fairly in the workplace. Standardized supervisor and manager training is essential here, along with standardized employee feedback and check-ins. Clear markers for promotion opportunities are crucial. And, quite simply, don’t tolerate jerks in the workplace. Tools like 360 reviews, where peers and subordinates also evaluate managers, can help. When it comes down to it, Beckstead says, “People who are happy, respected, and have a clear path to promotion are less likely to bring complaints of harassment and discrimination.”
Thank you, Amy, for breaking down the DEI conundrum for Texas employers so that it’s less intimidating and confusing!
