D&I in the Workplace: A Legal Perspective

BY BENJAMIN E. WIDENER, ESQ.

“If I have to do this, based on stereotypes that are totally untrue, and that I do not agree with, you would maybe not be a very good driver…” is the clue provided by the character of Pam to Dwight during a cultural awareness exercise featured in the second episode, “Diversity Day,” of the sitcom The Office, which aired on March 29, 2005. Through satire, the show emphasized the importance of promoting cultural diversity, inclusiveness, individuality, and equality in the workplace. It also highlighted how our viewpoints are influenced by stereotypes and our own unconscious bias.

Though diversity and inclusion have become core competencies in HR, and while the importance of the D&I initiative in employment has become generally accepted, the D&I initiative is not rooted in the law.

WHAT THE LAW ACTUALLY SAYS

Federal law prohibits employment discrimination based on race, color, religion, sex (including pregnancy, childbirth, and related medical conditions), disability, age (40 and older), citizenship, genetic information, and national origin.

Title VII of the Civil Rights Act of 1964 specifically makes it an unlawful employment practice for any employer to:

• Refuse to hire or fire any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
• Limit, segregate or classify its employees or applicants in any way that would deprive any individual of employment opportunities or adversely affect his/her status as an employee, because of such individual’s race, color, religion, sex, or national origin

The terms “diversity” and “inclusion” do not appear in Title VII, the Age Discrimination in Employment Act, or the Americans with Disabilities Act.

Many states have promulgated their own anti-discrimination analogs and, in doing so, have expanded on the classes and characteristics protected under state law. For example, the New Jersey Law Against Discrimination prohibits unlawful discrimination or harassment in employment based on race, creed, color, national origin, nationality, ancestry, sex, pregnancy, breastfeeding, sexual orientation, gender identity or expression, disability, familial status, marital status, domestic partnership/civil union status, liability for military service, and in some cases, atypical hereditary cellular or blood trait, genetic information and age. The California Department of Fair Employment and Housing similarly enforces laws that protect employees against illegal discrimination in harassment based on these same protected classes. Recently, many states have passed their own iterations of the Crown Act, which ensures protection against discrimination based on hair texture or protective styles. Many of these state statutes are designed to foster inclusion and diversity in the workplace. None of these statutes, however, specifically reference or include either of those key terms.

THE LEGAL IMPORTANCE OF D&I POLICIES

Though there may not be any statutory or legal mandate for D&I in the workplace, there are many places where D&I intersects with the law.

First and foremost, employers should adopt written D&I policies and should strengthen their equal employment opportunity and anti-harassment policies and procedures to include D&I training and education. While courts have not yet required employers to have D&I policies to avail themselves of affirmative defenses to employee hostile work environment claims, such a requirement could be on the horizon, particularly in more progressive jurisdictions.

Under federal law, it is well-settled that an employer may have an affirmative defense to employee claims of supervisor or co-worker sexual harassment (and other discrimination claims) where the employer has taken steps to eradicate discrimination from the workplace by:

• Promulgating an anti-harassment and anti-discrimination policy;
• Providing anti-harassment training and education for all employees;
• Having an effective and practical grievance procedure for aggrieved and/or whistle-blower employees; and
• Strictly enforcing these policies

Employers must have policies and procedures, but also must insist on effective enforcement to “practice what they preach” to avail themselves of this affirmative defense. D&I training can—and should—be implemented in tandem with anti-harassment and anti-discrimination training. Employers can—and should—establish interrelated EEO, anti-discrimination, and D&I policies and procedures for their workforce to follow. While this may not be required by law, it is only a matter of time before this becomes the rule, not the exception.

CODE OF CONDUCT MAKES A CASE

For example, in the 2016 case of Williams v. E. I. DuPont de Nemours & Co., filed in the United States District Court for the Western District of Tennessee, an employee alleged claims of harassment discrimination and retaliation in violation of Title VII. The court dismissed the complaint, observing that DuPont had a “Code of Conduct” and a “Respect for People” policy by which all employees were bound. Both the Code of Conduct and the Respect for People policies included DuPont’s initiatives and practices related to diversity and inclusion, equal opportunity and non-discrimination, people treatment, non-retaliation and freedom from harassment, among other things. The stated objective thereof was to “[s]trongly encourage those who believe they have been subjected to harassment, retaliation, discrimination or mistreatment, to report any such incidents for appropriate management action.” To that end, the Code of Conduct and Respect for People policies both detail DuPont’s reporting and investigation process for reported mistreatment.

The court noted that employers are not automatically liable for sexual harassment perpetrated by their employees and employer liability “depends on the plaintiff showing the employer knew (or reasonably should have known) about the harassment but failed to take appropriate remedial action.” While not central to the court’s holding, the court’s reference to DuPont’s Respect for People policy and DuPont’s diversity and inclusion policies reflects that the court considered DuPont’s D&I policies and procedures, as well as DuPont’s adherence to those policies and execution of those procedures, in rendering its decision dismissing the complaint. This is the tip of the iceberg in how courts might recognize and, in time, set precedent about the importance of inclusion and diversity in the workplace.

EMPLOYMENT DISCRIMINATION AND THE LEGAL ROLE OF EXPERTS

Another way in which D&I intersects with employment law is through the proffer of expert testimony in employment discrimination cases, as demonstrated by the 2019 case of Haydar v. Amazon Corp., LLC, filed in the United States District Court for the Eastern District of Michigan. Haydar, the employee, alleged discrimination on the basis of his Syrian descent and because he was Muslim. He contended his supervisor’s repeated reference to “you people…,” supported his claim of disparate treatment. Amazon maintained that Haydar’s national origin and religion had nothing to do with the termination of his employment, but that he was fired for failing to follow company rules.

At trial, Haydar hoped to introduce evidence through the expert testimony of Donna Marie Blancero, PhD, who would opine about bias against Muslims, unconscious bias, the differences between “diversity” and “inclusion” in the workplace, and the proper procedures for investigating an employee’s complaint, among other things. Amazon challenged the admission of Dr. Blancero’s testimony on various grounds, such as flawed methodology and insufficient data. In large part, the court agreed with Amazon and excluded Dr. Blancero’s testimony from introduction at trial. However, the court permitted Dr. Blancero to opine on the “Culture of Lack of Inclusion” section of her expert report. The court felt this part of her expert opinion fell “solidly within her expertise” and that even if the “typical juror is familiar with the difference between diversity and inclusion, the reliability of Blancero’s testimony ensures that the only prejudice is a bit of trial time, not misinformation.”

The Haydar case demonstrates how D&I can become relevant to a case through the introduction of expert testimony. Courts are divided about whether testimony of this type of evidence (on stereotyping, unconscious bias, and the social sciences of diversity and inclusion) is admissible or not. On the one hand, courts that exclude this testimony tend to reason that data about unconscious stereotyping is too far removed from carefully considered, case-specific employment decisions to be helpful to juries, and they draw distinctions between unconscious stereotyping and “intentional discrimination” required to make out a Title VII claim. On the other hand, courts that allow this testimony note that jurors are not necessarily knowledgeable about these issues and hold that the testimony can give jurors a context within which to evaluate the evidence. Whether relevant and admissible or not, employers and their legal counsel are facing new challenges with respect to the introduction of D&I expert testimony and evidence in employment cases, which could create exposure to liability and drive up litigation costs.

PROTECTION OF DIVERSITY INITIATIVES IN COURT

Another nexus between D&I in the workplace and the law can be found in the exchange of discovery in employment discrimination cases. For example, in Moussouris v. Microsoft Corp., filed in the United States District Court for the Western District of Washington in 2016, former Microsoft employees alleged gender-based employment discrimination against the company. Microsoft deemed confidential and proprietary certain documents, including diversity initiatives, exchanged in the course of discovery in the action.

According to Microsoft, diversity and inclusion was a business imperative. It argued its diversity initiatives were the equivalent of trade secrets for its business operations that gave the company an advantage over its competitors. Microsoft argued these initiatives helped build an “emotional connection” its employees needed to demonstrate high levels of commitment and contribution. Microsoft also explained that its ability to foster greater diversity in the workforce and to recruit top diverse talent in a highly competitive labor market was imperative to its success. Thus, Microsoft argued that its diversity initiatives, strategies, and representation data must be afforded the utmost protection and secrecy (and be filed under seal with the court) to prevent competitors from unjustly gaining access to these strategies and, in turn, recruiting Microsoft’s talent.

The court found Microsoft’s argument that its diversity initiatives, data, and strategies were trade secrets to be very persuasive and supported by the facts, and thus they were afforded due protection and confidentiality. While not directly related to the importance of diversity and inclusion in the workplace, this case is instructive on how diversity and inclusion efforts and data can be used, treated, and protected by employers, and also how that information can—and likely will—become the subject of discovery in an employment discrimination case.

STAY AHEAD OF THE LAW WHEN IT COMES TO D&I

There are many good reasons why an employer should build a diverse and inclusive workplace and create a harmonious environment for its workforce. This includes legal reasons that, while perhaps not yet mandated, may be considered by judges and juries in evaluating employment-related claims. Indeed, in time, whether an employer has adopted, effectively implemented, and actually honored its D&I policies could be integral to a harassment, discrimination, or hostile work environment case analysis.

In addition, D&I data and employee demographics may be discoverable in employment discrimination cases and, therefore, employers should take appropriate measures to safeguard this proprietary information. Lastly, diversity and inclusion in the workplace (or lack thereof) is ripe for expert testimony, so employers should embrace D&I in the workplace, create D&I policies, properly educate their employees on the importance of cultural diversity and inclusiveness, and maintain records of these practices, procedures, and D&I data to support (or refute) expert testimony in employment litigation.

About the Author: Benjamin E. Widener is a shareholder in the Employment and Litigation practice groups at Stark & Stark (www.stark-stark.com), a Princeton, N.J.- based law firm. Widener, as chairman of the firm’s Labor & Employment Law Practice Group, represents his clients in all aspects of labor and employment law and concentrates his practice in employment-related counseling and litigation.