Is Equal Treatment Enough?

The Current Debate Regarding Equality v. Equity

Federal and State laws have long required equal treatment for protected class members. Is that all that is needed to avoid legal liabilities? The lines between what is “legal” and what is needed to foster a diverse and productive work environment have become increasingly blurred. During the past six decades we have evolved from statutes banning discrimination against, and harassment of, expanding types of protected classes; to affirmative action; and, more recently, to evolving theories regarding what is required to truly level the playing field. The lines between what is legally required and what is sound practice have blurred. This panel discussed the current status of federal and state law, as well as how employers may benefit from practices that promote equity, regardless of legal requirements.

Equality v. Equity in the Workplace

1. When all applicants are treated equally, does it truly result in equal employment? Some statistics tell the story.

Post Pandemic Jobless Rates – Race

December 2021

• Blacks 1%
• Hispanics 9%
• Asians                8%
• Whites 2%

Long term unemployed job seekers – Age

October 2021

• Age 55+ 2%
• Ages 16-54 2%

2020 Disabled Worker Unemployment Rate:  12.6%

Women’s median income is 82% of men’s

(Bureau of Labor Statistics 2019)

Women request raises as frequently as men;

receive a raise 5% less often

(McKinsey 2021)

8% (41) of Fortune 500 company CEOs are female

.08% (4) of Fortune 500 company CEOs are African American

(Pew Research)

When men and women submit blind applications (no photo, no name), women’s likelihood of getting the job increases by 25-46%

(Harvard/Princeton study)

Companies with diverse workforces –

23% higher cash flow per employee

(Deloitte)

Companies with diverse management –

19% greater revenue than nondiverse

(Boston Consulting Group)

76% of job seekers believe a diverse work force is important in evaluating job opportunities

(Glass Door 2020)

80% of job seekers believe inclusiveness is an important factor in choosing an employer

(Deloitte)

2. The statutory and regulatory framework that was intended to achieve equal employment
   1. Federal Statutes
      1. Equal Pay Act (1963) – prohibits discrimination on the basis of sex in wages paid to men and women
      2. Title VII (1964) – prohibits employment discrimination on the basis of race, color, religion, sex, and national origin
      3. Age Discrimination in Employment Act (“ADEA”) (1967) – prohibits discrimination based on age against people over age 40
      4. Americans With Disabilities Act (1990); ADA Amendments Act (ADAAA) (2008) – prohibits discrimination based on an individual’s disability and requires employers to provide reasonable accommodations to employees and applicants for employment
      5. Family Medical Leave Act (1993) – provides twelve weeks of unpaid parental leave for both women and men in connection with the birth or adoption of a child; to care for a sick family member; and in connection with the employee’s own illness

In addition to the federal laws, most states have laws prohibiting discrimination on the same basis as the federal statutes and several states also prohibit discrimination based on gender identity and/or preference.

2. Federal regulatory efforts to promote more equitable hiring and employment practices

1. 1. 1. Executive Order 11246: Affirmative Action (1965)
         1. Requires federal contractors to implement written affirmative action plans designed to recruit and advance protected class members by way of outreach efforts, training programs, and other initiatives intended to expand protected class members’ equal opportunity in the workplace
         2. Private employers are encouraged to have and implement written affirmative action plans

[The U.S. Supreme Court recently accepted two Affirmative Action cases related to college admissions.  Would a decision prohibiting consideration of protected class in admissions impact affirmative action in employment?]

2. Hiring Initiative to Reimagine Equity (HIRE) (January 12, 2022) – EEOC initiative to work with “a broad array of stakeholders” in a “multi-year collaborative effort” to “expand access to good jobs for workers from under-represented communities and help address key hiring and recruiting challenges” by gathering information, identifying strategies, targeting tech-based hiring systems, and providing resources related to “evidence-based” recruiting and hiring practices that advance equity.

This new initiative remains largely undefined.

3. Progress in the five (5+) decades spanned by legislative efforts to level the employment playing field

According to an EEO memo prepared by the Center for Employment Equity for the Biden administration:

1. 1. There was progress for African Americans from 1960-1980, after which it stalled.
   2. There was progress for Women and Hispanics from 1960 until the mid- 1990s, during which it stalled.
   3. The total number of segregated workplaces decreased through 1980 and have increased since.
   4. White and African American earnings made progress toward equal pay for equal work through 1980; were stagnant in the 1990s, and disparities began rising in the 2000s.
      1. The wage gap between White and African American workers: 2010 – 10.2%; 2019 – 14.9%
      2. In contrast, the wage gap between White and Hispanic workers decreased: 2010– 12.3%; 2019– 10.8%
   5. The gender wage gap has decreased since 1973, when women’s average wages were 43.4% less than men’s. In 2018, the gap narrowed to 19.4%.  Disparities in the occupations and industries in which women are employed remain.

1. Shifting the focus to equity: Over the past few years, efforts to level the playing field for protected class members have been substantially expanded beyond what is required to provide legally required equal rights. Workplaces have begun to adopt culture changes intended to promote “equity” in order to achieve the goal of true equal employment opportunity.
   1. Some of the most common and pervasive strategies that employers have adopted to address diversity issues have not, at least standing alone, proven to be effective, including:
      1. diversity training;
      2. DEI committees;
      3. internal grievance procedures; help lines, and formal complaint policies; and
      4. public EEO commitments by employers.

Although these are positive steps and 1 & 3 are important to avoid legal liability, these efforts, alone, have not resulted in more diverse workplaces, especially in the upper level management of employers.

2. Policies and practices that have proved successful in hiring, retaining, and advancing diverse employees include those that address hiring and promotion practices; pay and benefit equity; individual employee success and development; and broader participation in the work, leadership, and social fabric of the employer, including:

1. 1. 1. Hiring/Promotion:
         1. posting all open positions, particularly for management and executive positions for which incumbants often select their successors;
         2. use of hiring committees with diverse members, instead of individual supervisors or nondiverse committees to make hiring and promotion decisions;
         3. use of diverse recruiters and/or direction to current recruiters regarding the company’s interest in including diverse candidates in the pool;
         4. inclusion of multiple diverse candidates in the pool of candidates for a position, including encouraging diverse applicants to apply for open positions;
         5. willingness to select a diverse candidate who is ranked lower by the interview panel – often traditional metrics used by recruiters or hiring committees skew in favor of non-diverse candidates; and
         6. re-evaluate the criteria used to evaluate candidates for employment or advancement; consider using a consultant with expertise in DEI issues to help develop criteria appropriate for the position.

3. Pay/benefits:

1. 1. 1. benefits to assist with child care expense;
      2. paid family leave to both mothers and fathers;
      3. evaluating and correcting wage disparities between employees who are performing comparable tasks

4. Targeted programs for protected class employees:

1. 1. 1. internship programs for protected class members;
      2. individual mentoring – preferably with someone of the same protected class serving as a mentor;
      3. individual assessment of and targeted training for employees, rather than, or in addition to, general training programs;
      4. provide flexible work hours/locations;
      5. talk with individual employees about their goals, work preferences; encourage all employees to participate in meetings – call on those who don’t volunteer information to share their ideas, opinions;
      6. spread responsibility for housekeeping tasks among employees of all genders rather than expecting certain people (usually female) to perform them.

5. Other strategies to encourage diversity and retention of diverse employees:

1. 1. 1. making achievement of diversity and inclusion goals a part of managers’ performance expectations, on which their own raises depend;
      2. structure work groups or committees with diverse members;
      3. sponsor social activities that allow employees to get to know one another; structure them in ways that result in diverse employees interacting rather than employees congregating with their regular group of friends.

OTHERS – what has worked for the attendees?

5. Will DEI efforts result in legal risk to employers since our legal structure protects “equal” treatment”?