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Late last month, Pinterest became the latest in a long line of large tech employers in Silicon Valley to voluntarily publish statistics about the representation of women and minorities in its workforce. This trend was motivated by the recognition that diversity in the workplace breeds creativity and ingenuity, and from persistent urging by Rev. Jesse Jackson’s Rainbow PUSH Coalition to address its concern that Silicon Valley has for too long been dominated by white men.

In Pinterest’s words,

  • By sharing these goals publicly, we’re holding ourselves accountable to make meaningful changes to how we approach diversity at Pinterest. We’ll also be sharing what’s working and what isn’t as we go, so hopefully other companies can learn along with us. Over time, we hope to help build an industry that is truly diverse, and by extension more inclusive, creative and effective. 1

Indeed, companies that have embraced inclusion have seen a tremendous benefit in having diverse perspectives and ideas at the table. Diversity fuels innovation in the workplace, a key ingredient in the recipe for business success.

Pinterest and the other tech giants are betting that being transparent about areas of underrepresentation and diversity in hiring and retention statistics will help motivate themselves and others to do better about filling positions with, retaining, and advancing diverse employees. But do companies face any risks in publishing such data?

Anyone who has dealt with OFCCP may shudder at the thought of a company publically disclosing its shortcomings and goals. OFCCP or EEOC could point to the data as being indicative of a systemic hiring issue, which is a primary target under EEOC’s national Strategic Enforcement Plan. In addition, the regulatory agencies, private plaintiffs’ attorneys and others may attempt to use the disclosure to make a case that the company is “reverse discriminating.” While the risks of reverse discrimination charges and suits pale in comparison to the risks of traditional systemic or pattern and practice discrimination, they must still be considered.

For these reasons, if your company decides it will join the growing trend of disclosing EEO statistics and goals, care should be taken in deciding what numbers to disclose, particularly what goals will be made public – as they say, no good deed goes unpunished. Moreover, steps need to be taken internally to minimize the risk of sensitive information being made available publically, such as reinforcing training on EEO laws for recruiters and hiring managers. And, if your organization wants to take race/ethnicity or gender into account in making employment decisions, it can legally do so only under a voluntary affirmative action plan complying with relevant U.S. Supreme Court case law.

Is There A Better Way?

Again, there is no debate that diversity is great for business. All companies should strive to be more inclusive, not just to better represent the communities in which we all live and work, but also because it leads to business success. But how do we that?

The best way to increase the diversity of your workforce and minimize risk of litigation issues is to embrace a formal Diversity and Inclusion Initiative, ideally designed by an attorney or professional consultant who is aware of the many EEO pitfalls. In the early days, many of these Initiatives were undertaken only after a problem had occurred. Now that accumulating experience and data are showing the benefits of a diverse workforce, more and more companies are learning that it pays to be proactive about diversity and inclusion.

Diversity and Inclusion Initiatives generally involve a study (under attorney-client privilege) of the company’s existing practices, data, and culture by trained experts, followed by the development and implementation of collaborative strategies, programs, and initiatives. The goal is not just to increase diversity, but to do so in a way that enhances the corporate brand and reputation, expands business opportunities, facilitates recruiting, and creates a competitive advantage by fostering collaboration and strengthening relationships with customers, employees, stockholders, regulators and the general public.

Short of a full-fledged corporate initiative, employers can undertake the following steps, as examples, to improve the diversity of their workforce:

  • Be conscious of diversity in advertisements to foster the theme of inclusivity and empowerment;
  • Identify, train and mentor diverse employees for potential promotional opportunities into groups with underrepresentation;
  • Consider increasing paid leave and other family-friendly options as a way to attract or retain women who may need or want flexibility for child raising purposes;
  • Expand your applicant pool; work with diverse recruitment sources, including Historically Black Colleges and Universities and other minority-centric institutions, to educate them about your jobs and the job qualifications so the sources can better identify and refer qualified candidates; and,
  • Take seriously OFCCP’s new requirement to annually assess the effectiveness of diversity outreach and recruitment efforts, and make changes where efforts are not working—engage outside legal experts to provide an objective, independent assessment

To learn more about Diversity & Inclusion Programs or EEO/affirmative action obligations, contact Scott Pechaitis at 303-876-2201 or [email protected] or John M. Bryson, senior member of Jackson Lewis’ Corporate Diversity Counseling Group at 703-483-8318 or [email protected].

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