Podcast: Why Diversity and Inclusion Matters More Than Ever
On this podcast, Littler employment attorney Cindy-Ann Thomas, co-chair of the firm's EEO & Diversity Practice Group joins XpertHR Legal Editor David Weisenfeld for a deep dive into diversity and inclusion issues. "Diversity is really not the problem for most employers, it's inclusion," said Thomas. This means taking a good, hard look at the organization's systems and practices.
Nonetheless, Thomas noted that it is important for employers to ensure their interviewing panels are diverse. Otherwise, she asserted, "You end up with a team of mini-me's."
Other key topics addressed in the conversation include:
- The legal risks of offering diversity bonuses;
- Lessons from the National Football League's "Rooney Rule"; and
- California's novel board of directors diversity law.
David Weisenfeld: I'm David Weisenfeld for XpertHR.com, published by Reed Business Information and proudly partnered with LexisNexis.
On this podcast our focus turns to diversity and inclusion. The case for establishing a diverse workforce is compelling. It can bring much-needed perspectives to your organization, improve morale and help the bottom line. And it doesn't just refer to race or gender but many other areas as well.
But diversity itself without true inclusion doesn't mean much, and won't get your company where it needs to go. So we'll take a deep dive into the steps your company can take to improve its diversity and inclusion efforts with Littler Mendelson attorney Cindy-Ann Thomas co-chair of the firm's EEO & Diversity Practice Group. Cindy-Ann practices with Littler's Charlotte, North Carolina office, and we're pleased to have her with us. Cindy-Ann, welcome. [0:01:12.8]
Cindy-Ann Thomas: Thanks so much for having me, David. I appreciate the opportunity.
David Weisenfeld: Well it's great to have you, Cindy-Ann, and I'll start with this quote which I like, which is, "Diversity is being invited to the party. Inclusion is being asked to the dance." So with that said, what's the number one thing companies can do better to make minority employees feel included? [0:01:35.4]
Cindy-Ann Thomas: You know that's definitely an often-quoted analogy, David, and we now go further and talk about "belongingness," which often refers to whether or not there will even be any music that I would want to dance to at the party. But because belongingness is gaining traction as a significant concept in these conversations, it truly is a part of the equation.
And to answer your question, there are so many things that companies can do, it's challenging to limit it to just one. But let me say it like this. In many ways, adopting a new diversity and inclusion strategy is a lot like adopting a baby. It requires dedication, research, patience and a real preparation. After all, new parents usually don't bring home a baby without first setting up a nursery, whether it's the home office or a spare storage closet. Parents tend to clear out all their old junk to make room for the arrival. Moreover, they take parenting classes, paint walls, build cribs, buy diapers, install car seats etc., whatever they can do to prepare.
I say all of this because in much the same way an employer embarking on a diversity initiative must ensure that the overall environment, including the existing "family," is ready to accept and accommodate the changes, employers should consider cleaning out their cultural spare rooms, as it were, and purging old habits that may no longer serve the goals of the organization. Most importantly, leadership must not only be on board with any cultural shift; they should be leading the way.
David Weisenfeld: And what in particular can they do to lead the way and make sure that it's not just lip service but there truly is effective inclusion? [0:03:29.3]
Cindy-Ann Thomas: Well a couple of things, David. Before a company embarks on going out to get more of whatever traditionally under-represented employees that it thinks it needs, or it thinks it can handle more of, it really must first look inward. The leadership of that organization must look inward to ensure that its culture is genuinely ready for the diversity that it believes it can handle because diversity is really not the problem for most organizations. It's actually inclusion. And this refers to really taking a good, hard look at the organization's systems and practices. Those have to be addressed preemptively.
David Weisenfeld: Cindy-Ann, there's a lot of talk as you know about training initiatives in this area. But some experts say they don't work necessarily because a lot of employees might say what they think the trainers want to hear and not necessarily what they're actually thinking. What are your thoughts on that? [0:04:35.8]
Cindy-Ann Thomas: Well those are sweeping statements. You're absolutely right that there are a lot of people out there that say that training doesn't work, but the right kind of training can absolutely work. By "right kind of training" what am I talking about? I am talking about ensuring that the training is meaningful, that the training is applicable to the learners in question, that the training is evidence-based so that learners don't feel that they are being subjected to some kind of ideological or politically correct initiative, that it is based on facts, that it is based on data.
It's important that the training in question is not based on old-style training techniques that focus on differences or that focus on guilt. Those types of techniques are very 1980s, maybe even 1990s, but they don't work today. These are some of the strategies that can make the difference, David, between an effective training initiative and an ineffective training initiative.
David Weisenfeld: So essentially look forward, not necessarily back. [0:06:02.3]
Cindy-Ann Thomas: Absolutely.
David Weisenfeld: Let's talk a little bit about gender diversity. You've done many presentations on that topic. How do employers make sure they're being flexible enough not only to attract talented women but to keep them during their careers, which I know has been a problem for some companies? [0:06:22.5]
Cindy-Ann Thomas: That's a great question, David. You know, there are approximately 74 million women in the workforce today with more and more women who are choosing not to work. And according to Gallup research, just 56.7% of women in 2015 were in the labor force. And we know that gender diversity in companies creates higher revenue and profit. The data is there.
To keep women - and again as Jane Miller, the COO of the Gallup Corporation, has often stated - kids are a company's greatest competition. So organizations have to keep this in mind when considering their parental leave, work/life balance, caregiving and telecommuting policies and practices. Not just polices but practices, for instance.
I also think that organizations have to examine and re-examine and continue to examine their coaching and mentoring cultures and systems. These are very significant factors as to why women aren't staying with organizations and why they are opting out.
David Weisenfeld: Well another challenge of course for women when it comes to diversity has been getting a seat at the table at the highest levels of a company. California has tried to do something about that with an intriguing new law mandating that at least one female be on the board of directors of publicly-held companies by the end of 2019, and possibly even more than that depending on the board's size. Cindy-Ann, what do you think of that law, and what have you been hearing about it? [0:08:08.9]
Cindy-Ann Thomas: My attorney's hat is always on, David! And I recognize that if you want something different that you have to do something different. And California's new rule is radically different for the traditional legal hurdles that exist in this country. But I think we have to tread cautiously here to avoid stigmatizing the initiative or the potential candidates, and a corporate version of affirmative action programs needs to be very carefully thought-out. I suppose we will see how that new law shakes out from a legal perspective at the end of 2019 or at the beginning of 2020.
David Weisenfeld: Should there be something similar for other groups? Because I would imagine a talented African-American candidate, for instance, might be thinking, "Hey, what about me?" [0:09:07.2]
Cindy-Ann Thomas: I don't know if something similar should happen, David, but I would imagine that we may certainly see something similar happen, depending on how this first experiment, if you will, based on this first demographic goes.
David Weisenfeld: Well Cindy-Ann, as someone intimately involved in diversity recruiting efforts, do you think that something akin to the NFL's Rooney Rule, requiring a company to interview at least one minority candidate for certain positions, be something that's useful and help with breaking glass ceilings? [0:09:44.9]
Cindy-Ann Thomas: Well for the benefit of our listeners, David, of course the Rooney Rule named after the late Pittsburgh Steelers owner and NFL diversity chairman, Dan Rooney, to promote equality was implemented in 2003 to increase opportunities for people of color seeking to become head coaches in the NFL. And so the rule is you can't hire a coach without having considered at least one African-American candidate. And it makes sense because it at least puts it into the hiring mode as a potential. It doesn't require that the person be chosen.
But whether this rule has really worked is a different issue because the stats that I've looked at from the NFL - and I am an avid fantasy football commissioner so I am always looking at NFL stats - it suggests that it has helped some, and particularly if you had some connection to former coach Tony Dungy. But it really hasn't helped a lot, especially after Dungy left coaching in 2008. And the Rooney Rule does not translate well for all industries.
David Weisenfeld: So Cindy-Ann, what do you see as being the main problem with the Rooney Rule? [0:11:08.2]
Cindy-Ann Thomas: There are a couple of issues with the rule. If there are no checks or balances to ensure a fair interview, or no guarantee that any of the non-white candidates or the non-male candidates, for instance, will be offered a job, and there's only a relatively small punishment for transgressions, that's a problem.
David Weisenfeld: With that said, how do you ensure that these types of interviews bringing minority candidates in the door are legitimate and not just for show? [0:11:39.0]
Cindy-Ann Thomas: Well we've seen some of the problems in the NFL application. So one of the things that organizations are going to have to do is implement more structure, more penalties for those transgressions.
So for instance, as an example, last year the Rooney Rule drew fire in apparent response to accusations of teams, including the Oakland Raiders you may recall, following the $100 million contract that that particular team and its owner, Mark Davis, secured with Jon Gruden during the last hiring cycle, circumventing the Rooney Rule by interviewing minority candidates who weren't even deemed to be legitimate contenders to land the job.
And again sorry for talking so much football, but I love the game and the issues that exist within the NFL with this rule are good lessons for some of the challenges and opportunities associated with this as a strategy in other industries.
So, for instance, a $200,000 fee for not following guidelines for multi-billionaire owners is a slap on the wrist. So the transgressions are going to have to draw some meaningful penalties if this is going to have some kind of stickiness, if you will, as a strategy in this space.
David Weisenfeld: The one thing that I suppose is a big positive with it is every once in a while you get somebody like a Mike Tomlin, the Pittsburgh Stealers coach who nobody had heard of, who came in for an interview and wasn't even considered a frontrunner for the job and just blew everybody away in his interview process and 10 years later he's considered one of the top coaches in the sport. [0:13:15.5]
Cindy-Ann Thomas: Absolutely. Absolutely. But as you bring that up, David, one more thing. The NFL's rule doesn't go low enough in the food chain. That's another issue. So as a lesson for corporations, we can't look at opportunities with this rule at just the upper echelons. It's important to feed the pipeline by applying the rule to jobs that lead up to those roles.
David Weisenfeld: So in other words if you don't have minorities in the middle manager positions, let's say, then they're not going to be in position to get those top spots? [0:13:52.3]
Cindy-Ann Thomas: That's exactly right.
David Weisenfeld: So what are your thoughts on diversity bonuses for corporate leaders? Is that a good idea to help in this regard? [014:01.0]
Cindy-Ann Thomas: Funny you should ask this. I explored this very topic in my own podcast, entitled Tackling Culture with Cash last year. And I will say this. There are some very real legal risks of directly compensating managers when they choose one candidate over another because of race, sex or ethnicity, for instance. And when someone says, "You will get a bonus for hiring more women or more people of color," in effect that is a potential violation of Title VII in and of itself, no matter how well-intended it is. Are companies who are determined to diversify their organizations, particularly within upper echelons, taking that risk? Yes.
So a better option to keep you out of legal trouble and really to avoid dysfunction, David, is to include diversity as a component in a broader, overall performance bonus calculation for managers, executives and others with responsibility for encouraging diversity within an organization.
And a second better variation of this strategy is to incentivize your recruiters to work at obtaining as diverse a candidate pool as possible. You see recruiters are not making decisions as to who actually gets hired in that scenario. They are making decisions as to who's going to be in the field of people that get hired. So the risk is really low here. If you have that same requirement for a manager, guess what? The risk goes up pretty dramatically.
David Weisenfeld: Again we're speaking with Cindy-Ann Thomas of Littler Mendelson. And Cindy-Ann, from a practical standpoint, what are some easy steps HR folks can take who might be listening to improve inclusion where they work? [0:15:48.3]
Cindy-Ann Thomas: Oh David, we could talk about that question all day. But a few things come to mind here. 1) In the screening context HR should be monitoring practices of their recruiters, both internal and external, to ensure that their beliefs about who is a good fit - we hear that term a lot, right? "They're not a good fit," or, "They're a good fit" - for the organization are not simply their own internal biases at work.
A second consideration to keep in mind in the hiring context, ensure that interviewing panels are diverse. And I mean that in the broadest sense and beyond primary levels of diversity, like education, personality types, communication styles, so that organizations are getting different kinds of people on their team and not creating a team of what I call "mini-me's." I always talk about the difference between meritocracy and mirror-tocracy. There's a difference.
A third context that I would just bring up here for our conversation is in the training context. I think, as we discussed before, it's very important to provide effective training that helps learners understand what inclusion really is and what it isn't. And how you label that training is not significant. Whether you call your initiative "DNI training" or "respect at work training" or "unconscious bias training" is really irrelevant. You just want to make sure that you provide the learners with application training so that they can understand what specific behaviors are involved when you speak about inclusion.
David Weisenfeld: Now do you get uneasy at all if you hear a client say that somebody just wasn't a good fit here, because sometimes that can be a code word for something else? [0:17:46.0]
Cindy-Ann Thomas: It absolutely is, and I spend a great deal of time talking clients off the good fit ledge! I push them to really ask themselves, "Well what does "fit" mean?" Because "fit" is a very popular catchphrase for organizations and for leaders within organizations when it seems to talk about something or somebody that they've never seen before, never had before, or "fit" meaning that is the kind of person that we have around here.
David Weisenfeld: Well shifting gears from "fit," what's the top question or concern that you hear from your clients when it comes to diversity and inclusion efforts? [0:18:39.9]
Cindy-Ann Thomas: David, I will tell you that probably the biggest concern or the number one question that I typically get in this space is, "Cindy-Ann, how do I know when I've succeeded? How do I know that I have gotten this inclusion thing right, or I have accomplished a truly diverse organization?"
David Weisenfeld: So what's the answer? [0:19:01.3]
Cindy-Ann Thomas: And David, that is a journey that really has no end-game because the dynamics are always changing.
David Weisenfeld: Well we've only got about 30 or 40 seconds left, Cindy-Ann, so do you have a final thought that you'd like to leave our listeners with? [0:19:19.2]
Cindy-Ann Thomas: I have many thoughts in this space, David, but if I can just encourage your listeners in this space to stay committed. And, as that old saying goes, this truly is not a sprint, it is a marathon. So stay engaged, stay committed, never give up.
David Weisenfeld: Well good insights indeed. Cindy-Ann Thomas co-chairs Littler Mendelson's EEO & Diversity Practice Group and practices with the firm's Charlotte, North Carolina office. Cindy-Ann, thanks so much for your insights. [0:19:55.5]
Cindy-Ann Thomas: Thank you David. It has been a pleasure.
David Weisenfeld: I'm David Weisenfeld. We hope you've enjoyed this podcast. Continue checking our website regularly for more podcasts on key employment topics affecting the world of HR, including Will Nationwide Paid Family Leave Ever Become Reality?
The opinions expressed in this program do not represent legal advice, nor should they necessarily be taken as the views of XpertHR or its employees. XpertHR.com is published by Reed Business Information, and is proudly partnered with LexisNexis.
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