Diversity and inclusion, or D&I, is not only a hot topic of public conversation but it is increasing in its organizational priority and focus with many searching beyond the rhetoric for practical solutions. And it seems everyone believes they are a D&I expert looking to provide advice, which many companies are readily engaging. Most recently, however, highly publicized and unfortunate events of race, gender, disability and other bias perpetuated by employees toward customers (as well as co-workers) show that even the most sophisticated and well-intentioned companies are wrestling with effective implementation of D&I-oriented policies, training and programming. This leaves many within and outside the field recognizing that successful implementation of D&I initiatives may not be as easy as we think.

There could be a myriad of reasons why a company's D&I initiative is not working successfully or at all. Here are a few.

• Organizations, including its lawyers, may not understand the distinctions between equal employment opportunity (EEO), affirmative action and D&I so the program struggles.

Without a clear grasp of what D&I is and what it is not, the D&I initiative will undoubtedly struggle in its execution. And although, as labor and employment lawyers, we may be experts in the equal employment opportunity laws or even have a command of affirmative action precedent, we may be less attuned to legal distinctions for diversity and inclusion. Grasping the legal differences and the often-competing terminology, however, will allow the journey toward an effective D&I program to begin.

Equal Employment Opportunity (EEO)

Equal employment opportunity (EEO) refers to Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Americans with Disability Act (ADA) as amended, the Pennsylvania Human Relations Act (PHRA), and other federal, state and local laws that prohibit treating people differently based on certain defined characteristics. This category of laws cover most U.S. employers and are generally passive and prohibitory—setting forth what employers cannot do when making workplace decisions.

Affirmative Action

Affirmative action laws, however, only cover federal contractors and subcontractors. Prime affirmative action laws include Executive Order 11246, the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA), and Section 503 of the Rehabilitation Act of 1973. This category of laws not only prohibit discrimination, but additionally require covered employers to take proactive steps to ensure equal employment opportunity for specified groups.

Diversity & Inclusion

More recent and widely known U.S. Supreme Court decisions involving affirmative actions taken in higher education admissions have added to the confusion into how diversity or inclusion initiatives may fit into the existing legal landscape. As a result, many are left to decipher the implications of affirmative action decisions on proposed D&I initiatives.

However, employers who are not subject to affirmative action (and even some employers who are) can voluntarily develop and implement diversity and inclusion programs, which are sometimes referred to as “voluntary affirmative action.” These programs are created to increase the representation of underrepresented groups and to reap all the benefits of having a diverse workforce. D&I programs are voluntary, self-directed and, with very limited exception, are not regulated by an external or governmental entity.

• Organizations, including its designated D&I practitioner, may not have tackled the steps that lead to a well executed D&I initiative.

Once some degree of clarity in what D&I is and is not has been achieved, the next steps lie in the creation and execution of the initiative. Organizations of any size may fall within one of several phases when seeking to implement a D&I initiative. Those steps involve: strategic and action-oriented planning; legal compliance and risk-reduction; program development and implementation; and strategic business integration.

Step 1: Developing the Strategic, Action-Oriented D&I Plan

A key obstacle to successful implementation of D&I initiatives is the lack of a well-thought out and defined plan of action. The most effective D&I initiatives start with strategic planning and an understanding of how D&I fits into the overall goals of the business. Employers with the most effective initiatives have action plans that all can follow with articulated deliverables, timelines, means of program assessment and proposed resources, including budgets.

Step 2: Accounting for Legal Compliance and Incorporating Risk-Reduction Measures

The legal landscape surrounding D&I is tricky. And although D&I initiatives are voluntary and self-directed, there are legal issues that practitioners should contemplate to ensure the program is legally compliant and reduces the potential risk of litigation. Effective D&I plans begin by contemplating what those legal issues are and by building risk-reduction measures into the structures of programming, processes and systems.

Step 3: Determining Program Development and Implementation Approaches

There is no shortage of articles, studies, and research discussing best practices, pitfalls and dos and don'ts when seeking to implement a D&I initiative. And practitioners, including legal counsel, often find themselves buried in information but lacking in practical guidance. Whether launching a new D&I initiative for the first time or expanding an existing program, there are best practice guiding principles that employers should consider.

First, if any D&I initiative is going to be effective, the practitioner should conduct a D&I assessment to capture organizational needs and wants. In order for a D&I program to be successfully developed and implemented, there should be an understanding of the company's D&I needs and goals, its employees, its business, and its customers/clients/consumers. Relevant information may be gathered in the form of a survey, focus group(s), internal data analysis, industry and labor market data, another form of assessment and/or a combination of measures.

Second, if any D&I initiative is going to be successful, leadership must be engaged. This is a point that is often made. But it is not often done. Leaders and managers from the CEO to daily operations managers should be prepared to communicate that D&I is important to the business, to the workplace culture, and to them. And no person should be excluded as a potential participant or communicator of D&I initiatives. In a 2016 Harvard Business Review article, “Corporate Diversity Initiatives Should Include White Men,” Avivah Wittenberg-Cox highlights a now-prevailing argument—D&I approaches are more likely to work that embody a commitment to change and a skill at getting everyone to buy in to it. If good leadership is responsible and accountable for engaging everyone in change then D&I initiatives are more likely to move from policy to effective actions.

Third, to increase the likelihood of success, the practitioner(s) should take the time to research and detail the mechanics of a proposed program. There are a wealth of consultants and experts who are offering programming services. But the practitioner would be well served to research potential D&I training concepts, hiring initiatives, retention efforts, and inclusion programs to ensure he/she is very familiar with terminology and well versed in the concepts as the program is being developed.

Step 4:  Working Toward D&I as an Integrated Business Practice

Those organizations that appear most equipped to embrace the D&I initiative are focused on creating a workplace culture of inclusion and not simply a D&I program. These organizations recognize D&I not as a stand-alone department or silo activity, but as a strategically integrated business practice. It is certainly not an easy undertaking, but pursuing a means to foster cross-department and systems integration that ensures D&I concepts are embedded into marketing/communications, human resources, talent management, recruiting, business groups, operations, leadership development and learning will help move D&I into strategic, business integration.

Although an area of increasing organizational focus, implementing a diversity and inclusion initiative is not as simple as many believe. Once those who are tasked with communicating and executing a D&I initiative understand the legal nuances involved and develop a step-by-step process for implementation, the organization will be well-positioned for a successful D&I initiative, less confusing experience and a better-positioned workplace.

Kimya S.P. Johnson is senior counsel and co-chair of the diversity & inclusion practice group at Ogletree Deakins. Her practice focuses on supporting employers' efforts to strategize, build, communicate and implement legally compliant and effective D&I initiatives. Contact her at 215-995-2800 or [email protected].