Your Company's DE&I Efforts May Be Putting It At Legal Risk

Stephanie Holmes
October 19, 2021

Many companies are focused on the laudable goal of increasing diversity and inclusion in their workplaces, spending something like $8 billion per year in the United States, yet although these courses may be well-intentioned, some approaches and training content may be creating legal liability for employers and having a counterproductive impact on work environments.

In recent months, some DE&I training has focused on race and gender topics in a manner that may run afoul of discrimination laws. For example, some corporate training materials that have been made public incorporate concepts of critical theories, specifically that one’s race or gender is inherently oppressive or oppressed; that one should feel guilt based on their particular race or gender; or that employees must consider each other’s race or gender in interactions.

Some employers do not seem to be considering fully the risk of liability under Title VII and other federal and state discrimination laws. In short, Title VII, for example, is a federal law that protects against discrimination in employment based on race, color, religion, sex, and national origin. It protects every race from discrimination in the workplace and helps to ensure fair treatment of all employees. The current approach to DE&I training at many companies may be creating legal liability for race or gender discrimination claims or hostile work environment claims. It is important for employers to be mindful that DE&I efforts and materials are not exempted from the requirements of Title VII or similar state laws.    

With regard to discrimination claims, the content of a company’s training material may be used as evidence of the company having a bias toward members of a particular racial group or gender and could help establish a valid claim. As a reminder, members of any racial group or gender may have a meritorious discrimination claim if they suffer an adverse action (e.g., denied a promotion or terminated) based on their protected category.  In furtherance of a discrimination claim, employees could point back to training content as an illustration of the company holding their race or gender against them. The legal protections extend to both majority and minority groups.    

There is also risk of this training content creating hostile work environment claims. Some employers are requiring employees to attend more frequent DE&I courses or encouraging coworkers or managers to have discussions about race or gender with their teams. While the standard for establishing such claims is high, if an employer is consistently or effectively mandating that employees participate in sessions or conversations where their racial group or gender is portrayed negatively, or if such concepts are permeating the workplace culture, it could constitute a hostile work environment.          

Beyond the legal risks involved, there is also the impact of bringing controversial political topics into the workplace, especially when they relate to employees’ protected categories (e.g., race, gender) and when they are not related to primary business goals.  As demonstrated in recent elections, the country is polarized politically, so employers should consider that their employee populations (generally speaking) will likely be similarly divided on political topics.  Thus, bringing any kind of political issue into the workplace may be difficult to manage from an employee relations standpoint.  The content of some DE&I training, for example, generally comes from one perspective, with either an explicit or implicit expectation that employees need to adhere to the company’s viewpoint on social or political issues.  For the employees who have different philosophies or beliefs, being forced to listen to or adhere to an ideology they oppose can lead to a negative workplace culture, particularly when it is unrelated to their job responsibilities. For example, it can lead to lower employee morale, division and discord among colleagues, disengagement, and high turnover, which can all result in lower productivity.

As there will almost certainly be an increase in lawsuits in this area, employers may want to take a step back and evaluate the content of their trainings. They should really consider whether the current, mainstream approach is truly resulting in better workplace environments and review closely the legal risks associated with it. It would also be prudent for companies to ensure their legal departments review DE&I materials prior to implementation.  

There are certainly ways to cultivate a diverse and inclusive work environment that is consistent with applicable laws and leads to greater harmony among employees, which is really the goal.  For companies interested in a different approach to DE&I, solutions like ViewHR offer refreshing alternatives to workplace training. They aim to cultivate a positive and compliant culture in which all employees feel valued and respected and in which businesses can flourish.

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Stephanie Holmes is the founder of BrighterSideHR, an HR consulting firm. She is an experienced labor and employment lawyer who started her legal career at a large, international law firm and then worked as an in-house counsel for a Fortune 500 company for almost a decade. Stephanie works closely with business leaders on a wide variety of employment matters and enjoys helping employers navigate workplace issues.

ViewHR’s goal is to promote fairer and happier workplaces through common sense training.