Some workplace diversity initiatives are required by law, not driven by personal feelings. We can consider how neuroscience affects personal perception, how unconscious bias affects workplace culture, and – yes – how the law affects our strategies and behaviors. But understanding the basis for Diversity, Equity and Inclusion (DEI) efforts requires a holistic view. All of these moving parts work together to achieve and maintain an inclusive workplace culture.
In this article on workplace DEI, we’ll look at how law plays a role in diversity efforts – both where it succeeds and how it falls short.
Within any workplace, individualized diversity policies are key to addressing issues of bias. But federal, state, and local diversity laws can help. Laws give us a measure – of how far we have come, how far we have to go or how wide our remedies to bias can even be.
Workplace Diversity Law in Europe
Legal approaches in Europe, for example, differ greatly from the United States. Publicly traded companies in European countries have begun to adapt quotas mandating a minimum percentage of women on their boards. In March 2015, Germany began requiring 30% women on boards. In 2003, Norway began requiring 40%.
Quotas can be a good first step, as in this instance, and it prompted European countries to think beyond gender diversity alone on their boards. After legislation changed, many contracted managers in order to expand these diversity initiatives into their general workforce. This piece of legislation not only was picked up by numerous countries in Europe (France, Spain, Italy, Iceland, Belgium), but pushed business owners to think beyond the limits of the legislation, expanding the possibility of improving their overall diversity practice.
On the flip side, quotas can be seen as legislation that leads to stagnancy, rather than sparking further action. For example, one manager may see a new quota initiative as a step to substantiating further internal changes, while another manager may simply fill the quota, assume diversity has been achieved and move on… demonstrating that quotas alone cannot solve the issues of diversity, equity and inclusion in the workplace. These pieces of legislation must be matched with internal trainings and systemic support in order to avoid complacency.
Quotas may also go against anti-discrimination laws, as they explicitly state minimums based on gender or another protected class. So while quotas may work in Europe, the United States´ approach to addressing issues of bias on the federal level is distinct. One person´s progressive goal may be another´s barrier to advancement.
Diversity Law in the United States
In the US, specifically, legislation does not require minimums in order to mandate and numerize “diversity,” but works punitively to address acts of discrimination in the workplace. These laws come primarily from the Equal Employment Opportunity Commission (EEOC) of the federal government. While state and local legislation exist to address discrimination in the workplace, let’s look at federal legislation.
The EEOC began in 1964 with Title VII Civil Rights Act, although acts to counter discrimination began decades before. The first official piece of anti-discriminatory legislation passed in 1941: an Executive Order to prohibit employment discrimination based on race, color or national origin. However, this legislation was not matched with an enforcement authority until the 1960’s. This Executive Order was followed by Equal Pay Act of 1963 (addressing issues of gender wage gap) and the Civil Rights Act of 1964 (affirming that employment discrimination based on race, sex, color, religion or national origin is prohibited not only to federally contracted businesses but also to the private sector). Legislation addressing issues of age, pregnancy, disability and veterans followed. It’s clear through the various edits and amendments that have passed between 1964 and 2000 that the government worked to address the changing times, however retroactively.
Beyond prohibiting discrimination on a federal level to all businesses (which can only be enforced retroactively), federal contractors – businesses that employ 50 or more employees and have a contract with the government of at least $50,000 per year – must fill out an annual Equal Employment Opportunity (EEO) report. These reports allow the government to track companies that are complying not only with anti-discrimination laws, but are actively working to engage protected classes into their workforce. With this information, the government – and public – can track the progress (or lack of progress) of large corporations. For example, Intel is one of the first companies to achieve 100% pay equality for women and minorities, according to their 2016 diversity report. By providing this information, Intel led the way and motivated other large corporations to follow suit – not only because it’s the right thing to do, but because it’s beneficial to stay ahead of the talent curve to attract and retain the best talent. On the opposite end, Oracle was recently sued by the Department of Labor for its “systemic practice of favoring Asian workers in its recruiting and hiring practices for product development and other technical roles, which resulted in hiring discrimination against non-Asian applicants.” These examples of punitive action may also serve as cautionary examples for fellow companies to intentionally and actively work on their diversity, equity and inclusion (DEI) policies and practices.
Follow the Law or Do the Right Thing?
“Diversity is a strange combination of doing the right thing because it’s the law and doing the right thing because it’s the right thing to do.”
This quote is highly arguable, but it does speak to the mentality that still exists around DEI practice in the US. Do I prioritize DEI in my business because it’s the law? Because it will bring in more revenue? Because it will retain my employees? To get ahead of the competition? To boost our public image? Because it is the right thing to do?
There are many motives – some more ethical than others – behind DEI, but the motive is just the first step. Think of quotas or anti-discrimination laws. They are a step in a multi-step, multi-layered process to transforming workplace culture. So while they may have come a long way in the past half a century, they cannot be the end-all of this process. Rather, the laws should work as a further motivation to achieve truly inclusive, diverse and equitable workplace practices.
10, 2015 September. “Gender, Diversity, European Quotas, and U.S. Law.” Littler Mendelson P.C., 20 July 2017, www.littler.com/publication-press/press/gender-diversity-european-quotas-and-us-law.
The Law, www.eeoc.gov/eeoc/history/35th/thelaw/index.html.
Miller-Merrell, Jessica. “Companies Must Look To Regulations For Establishing Workplace Diversity Programs.” Forbes, Forbes Magazine, 13 June 2018, www.forbes.com/sites/forbescoachescouncil/2017/05/22/companies-must-look-to-regulations-for-establishing-workplace-diversity-programs/#59c721715869.
 10, 2015 September. “Gender, Diversity, European Quotas, and U.S. Law.” Littler Mendelson P.C., 20 July 2017, www.littler.com/publication-press/press/gender-diversity-european-quotas-and-us-law.
 The Law, www.eeoc.gov/eeoc/history/35th/thelaw/index.html.
The Law, www.eeoc.gov/eeoc/history/35th/thelaw/index.html.
 Miller-Merrell, Jessica. “Companies Must Look To Regulations For Establishing Workplace Diversity Programs.” Forbes, Forbes Magazine, 13 June 2018