Punching In: Employers Face Scrutiny From All Sides Over DEI

Monday morning musings for workplace watchers.

Affirmative Action Fallout|Eyes on Burrows, EEOC

Khorri Atkinson: The US Supreme Court’s recent rejection of race-conscious college admissions policies is bringing heightened scrutiny to workplace diversity initiatives and employers are bracing for potential lawsuits from both supporters and critics over the scope of their hiring and promotion practices.

To be sure, large corporations specifically have long faced legal challenges by conservatives and others over plans to hire, retain, and advance minority workers. But the high court’s affirmative action ruling—though entirely unrelated to employment practices—is being used as a basis to challenge the legality of policies designed to boost workplace diversity, equity, and inclusion.

Supporters’ continued push for employers to expand DEI efforts, and the growing legal threats by critics, make it even more challenging for businesses with a genuine commitment to overall fairness in hiring and promotion to reach common ground without being seen as alienating anyone, employment attorneys said.

Employers risk exposing themselves to discrimination claims by minority workers if they succumb to calls to rethink DEI policies intended to help weed out workplace bias, they said. But they’re also concerned about potentially facing reverse discrimination lawsuits by White workers that could lead to damages.

“We’ve advised employers on these issues before the ruling. Certainly, there have been increased requests since then from employers to ensure they understand” whether the admissions ruling could ever be applied in the employment context, said Annette Tyman, a partner at Seyfarth Shaw LLP.

“It’s very much top of mind right now because there has been a lot of noise around the back and forth on what’s permissible and what’s not,” Tyman said.

Charges filed with the US Equal Employment Opportunity Commission show that employers face significantly more discrimination claims from minority workers than those who are White, attorneys said.

The high court’s decision has set the stage for future challenges to the rationale behind workplace DEI initiatives. However, that doesn’t mean that employers should stop DEI initiatives, but rather conduct an audit to ensure their policies are carried out in a race neutral manner, said Nicholas Simpson of Jackson Lewis PC.

“There’s going to be scrutiny on both sides,” he said. Employers should make decisions on legitimate business reasons, and ensure internal and external statements can’t be misinterpreted to suggest noncompliance with the law, Simpson added.

“This is a really good opportunity to engage in more education and training to explain to workers the purpose behind a particular DEI program and what you’re trying to achieve,” Tyman said. This approach provides clarity and transparency, and prevents unnecessary legal risks, she added.

Read More:

• Republican AGs Have Tough Legal Road Against Corporate Diversity
• Affirmative Action Ruling Sets Up Clash Over Workplace Diversity
• Corporate Diversity Pledges Fizzle Amid Layoffs, GOP Backlash
• Diversity-Fueled ‘Reverse’ Bias Claims Put Employers In Quandary

Photographs are displayed inside the Equal Employment Opportunity Commission headquarters in Washington, D.C., on Tuesday, Feb. 18, 2020.

Photographer: Andrew Harrer/Bloomberg

George Weykamp: The Biden administration finally has a majority on the US Equal Employment Opportunity Commission, at least for the next five months.

The Senate narrowly confirmed Kalpana Kotagal to the commission earlier this month, giving Democrats control over the agency for the first time in Biden’s presidency. But the clock is ticking for current Chair Charlotte Burrows, who needs to be re-confirmed by the upper chamber before the end of 2023.

While most EEOC watchers agree that there currently isn’t much business opposition to Burrows, that could change depending on how she leads the commission with a full majority.

Burrows will now be able to enact a more progressive agenda that was stalled when the commission was deadlocked with two Republicans and two Democrats. But business groups are going to be watching what direction she takes the EEOC while she awaits confirmation, particularly how the agency handles pay disclosure requirements.

Observers say it’s not a question of if Burrows reinstates EEO-1 Component 2 data collection, which would once again require employers with 100 or more employees to submit pay data to the EEOC, but when.

If Burrows were to try and bring back pay data disclosures without obtaining public input, she could face backlash from business groups that could complicate her confirmation, said HR Policy Association Attorney Roger King.

“Everything should be done through formal rulemaking and meaningful public hearings,” King said.

President Biden renominated Burrows to the EEOC last month, days before her term expired on July 1. Due to a holdover provision in Title VII of the 1964 Civil Rights Act, Burrows can extend her term until the Senate adjourns for the session at the end of the year.

If the Senate doesn’t move on her nomination before then, Burrows must vacate her post.

Burrows was unanimously confirmed by a Republican controlled Senate when she last faced the upper chamber in 2019, with one caveat: she was paired with Republican General Counsel nominee Sharon Gustafson. This time around, Burrows is flying solo.

We’re punching out. Daily Labor Report subscribers, please check in for updates during the week, and feel free to reach out to us.