Answers to your commonly asked questions about what changes to DEI mean for your organization
Feeling really confused and overwhelmed by the constant changes in DEI? You are not alone. There has been a lack of guidance surrounding what is and what is not allowed within organizations right now. Rather than be reactionary, here are answers to the eight most common questions Justice Informed has been asked about.
Many of our answers have to do with reviewing policies with legal counsels, if you chose to do so, we encourage you to discuss attorney-client privileges first.
1. Are ERGs or affinity groups still legal?
Yes, with some changes. ERGs and affinity groups are still lawful if they are open to anyone. You cannot include people who are not part of a “minority group”. So you can still keep them (and we recommend you do!) as long as membership is open to anyone who wants to join. It’s best to review membership verbiage with legal counsel.
2. Can I still provide leads with supplemental pay?
Yes, but you should review the language with a lawyer. If membership is open to anyone, then supplemental bonuses should still be acceptable as it is not favor one group, but are supplemental for extra work. Any changes to policies should be transparent and clearly communicated.
3. How about mentor programs and professional development programs?
Yes, but similar to ERGs and affinity groups, mentorship, internship, and professional development programs have to be open to anyone who wants to apply. You can still set criteria for acceptance, but it cannot be based on race, gender, veteran status, or disability status. Guidelines and applications should be reviewed with a lawyer (are you seeing a trend yet?).
4. Can we still have DEI trainings?
Yes, well-designed equity and inclusion programs are not illegal (as long as they comply with Title VII). As with much of this conversation, it ensures that your policies do not explicitly favor or punish employees based on race, gender, or protected class. A good DEI training should already do this. Your trainings should have clear learning goals and be invitation-based.
Building a better culture requires upskilling and building employee capacity. This is still not only legal, but encouraged.
5. Can my organization still engage in DEI assessments or audits? How about pay equity reviews?
Yes, and job seekers want to know you are still supporting diversity in the workforce. Having a well-thought-out culture and DEI strategy improves employee engagement, increases innovation, and drives increased profits. Your strategy should not be tied to hiring or promotion quotas, but rather building tactics that consider culture, leadership development, and equitable access.
6. Can my organization still utilize diverse slates in hiring?
This one is more tricky. The short answer is no. Disparate treatment “DEI” now means that hiring, promotion, and compensation, cannot be based on selection of “diverse” individuals over others. There are some cases in which organizations can claim there is a “business necessity” for client or customer preferences. Organizations right now are better off focusing time and attention on their recruitment channels and expanding reach rather than diverse slates in hiring. We highly encourage your talent management team to meet with legal counsel to review the language in hiring posts. You should also train your HR and hiring managers on how to respond to applicant questions and any changes in practices.
7. Can I even collect demographic data from employees or applicants?
Yes, it is still recommended that you collect demographic information, including race, ethnicity, gender, veteran status, and disability self-identification. Some states require the collection and review of this information. Veteran and disability status are still required by federal law. Consistently analyzing your staff and applicant data is the only way to ensure you are not discriminatory.
While federal employees and contractors may be more restricted, nonprofits and private companies can still ask for identities beyond “male” and “female”. Best practice states you should include “non-binary” and “do not wish to answer”. Always be clear with applicants how you will use and store this information. How you store and review your demographic information should be aligned with the Uniform Guidelines on Employee Selection Procedures (UGESP) and state policies.
8. What about supplier diversity?
Local and state law has a lot of impact here. We are seeing some places that are still keeping WBE or MBE requirements for RFPs, and large companies are still choosing to focus on supplier diversity. If your region does not allow for this, consider using small business requirements to support local and diverse organizations. Before using language in an RFP, consult with your legal counsel.
Still confused or interested in learning more about how your organization or team can benefit from a Justice Informed strategist? Contact us at info@justiceinformed.com or visit our website at www.justiceinformed.com today.
