Diversity, equity and inclusion training and programs - past, present and future

The days of actively promoting diversity, equity and inclusion (DEI) may now seem to be far behind us. The Supreme Court halted the use of affirmative action in the college and university student application and selection process, and DEI programs across the country have been aggressively challenged. As they strive to diversify their ranks, companies - and law firms - are treading carefully.

But many are continuing to track progress, offer support, and train employees on DEI issues. Recent surveys and statistics suggest that anti-bias and DEI training, as they have been presented over the last 20+ years, have actually had some positive effects. They have moved the needle in some workplaces.

The question now is as follows: Are the DEI trainings and programs, as we have come to know them over the years, due for an overhaul or an upgrade? Do we need to think differently about these programs and how we deliver them? The answer is a resounding "yes." In order to move forward and continue to evolve, we must think of new ways to deliver traditional DEI training and programming. We must move from a "one and done" approach to a model of sustained leadership development, with an understanding of and sensitivity to the diverse society in which we now live.

History of Anti-Bias, Sensitivity, and DEI Training

Most DEI training today is delivered in-person, for about two hours, with a facilitator or trainer who lectures on what bias is and how it arises. The trainer will provide examples, put forth some hypotheticals, and perhaps facilitate some role playing. Then there will be a 10 (or more)-question quiz at the end. Some training is provided online, attempting to incorporate the same principles, with a short quiz at the end.

Historians and social critics have traced these trainings back to the early 20^th century, where in smoky coffee houses in Vienna, Austria, Jacob Moreno, an editor with Expressionist Magazine, would gather with his friends of the day - the likes of Sigmund Freud, Leon Trotsky, Gustav Klimt, and Peter Lorre - and they would discuss controversial issues of the day, including race and discrimination in society. They would voice their raw fears and emotions about these issues, laying it all on the table, without inhibition.

Moreno's work may have inspired social psychologist Kurt Lewin, who founded the Research Center for Group Dynamics at MIT and what is called "action research," to begin leading human corporate sensitivity or "T-Trainings" for companies like Kodak, Ford, Western Electric, Boeing, and Procter & Gamble. Critics, such as author W.E.B. DuBois, said such trainings were white-washed and did not truly address the perils of Black and disadvantaged people of the day.

The 1960s civil rights movement gave energy to what we see as modern-day corporate sensitivity and diversity training. Price Cobbs, an African American psychiatrist, and George Leonard, a white psychologist, co-wrote the book "Black Rage" and began to lead "Interracial Encounter Groups" in places like Big Sur, CA. They brought together Black and white people to confront issues of race in intense sessions that brought people to their knees. Success was when at least one white person left the session admitting that he or she was racist and owning the sins and atrocities of ancestors.

Such training continued to evolve as the Civil Rights Act of 1967 required corporate America to integrate and become more accountable for creating equality in the workplace. Lawsuits, such as a class action race discrimination lawsuit against Xerox, led companies to hire folks like Cobbs and Leonard to do sensitivity training focused on helping Black and white employees integrate in the workplace.

The 1970s brought an expansion of training to address issues of gender diversity, and the 1990s saw training expanded to focus on other identity groups such as individuals with disabilities, other ethnicities, religions and sexual orientation. Some original pioneers of the work claimed that it had been watered down and no longer focused on issues of race and race relations - the original intent of the training.

From this history has evolved modern-day diversity training, which goes by many names: sensitivity, bias training, implicit bias training, DEI training, DEIB training, as well as training subsets such as microaggressions, gaslighting, white privilege, and being anti-racist.

Current state of DEI

It's no secret; discussions about bias and DEI are top of the news each day. Individuals being accused of being DEI hires, bridges falling down because of DEI hires, promises by politicians and elected leaders to continue DEI programs and initiatives or to discontinue them if elected. These issues are front and center and no longer the elephant in the room. They are taking up a good part of the air in the room.

There has been much activity in the last 20 years, with intense activity following the death of George Floyd in May 2020. Many companies and their leaders publicly committed to DEI and to issues of racial equality and parity in particular. They removed offensive names from their products and implemented emergency sensitivity training. Publishers hired inclusivity readers and editors and vetted manuscripts for alleged racist representations.

There was also a rise in the Black Lives Matter movement and an overall increase in social activism both in and outside the workplace. We saw a sea change - some would say short-lived - due to Floyd's death and the Covid-19 pandemic.

We saw the evolution of roles in corporate America with titles such as Affirmative Action Officer, EEO Manager, Diversity Leader, Chief Diversity Officer, VP of Diversity, Diversity Coordinator, Diversity Steering Committee or Task Force. The message evolved from "Diversity is the right thing to do" to "Diversity is a business imperative."

But in the backdrop was an evolving political climate that questioned and spoke against the need for DEI training and initiatives within firms and organizations, along with a focus on removing any form of DEI or set-aside programs in federal and some state and local government programs. Although there was a change in presidential administrations, the tension between those supporting such programs and those opposed has intensified. DEI is now at the center of political and social discussion.

Many of the companies and organizations that increased support for DEI and social causes just a few years ago have now withdrawn or decreased their commitments to their prior initiatives. The tides have turned, and the urgency of the moment has cooled; budgets have dried up; DEI positions in entertainment and other industries have been eliminated, downgraded, or replaced with or incorporated into a new corporate governance structure called ESG - Environmental, Social and Corporate Governance. ESG focuses on a company's or organization's commitment to the broader community and social issues. WEB DuBois and Dr. Cross might say they have been watered down.

The U.S. Supreme Court's June 2023 decision in Students for Fair Admissions Inc. v. President and Fellows of Harvard College sent shockwaves not only through the education community but also through the business world. Large law firms and organizations that have run DEI and similar programs, such as the Fearless Fund - which provides venture capital to Black women - have been sued and forced to rethink their strategies. In July 2024, SHRM - the Society for Human Resource Management - announced that it was doing away with the term DEI and moving to I&D for Inclusion and Diversity - no more equity. This decision has shaken up the human resources and DEI communities.

Employee views on DEI trainings and programs

Despite the changing tides, recent studies of employees suggest that DEI is still important to employees and that they appreciate it when their companies and organizations show a commitment to these issues. A May 2023 Pew Research Study found that more than half of employees surveyed said that their organizations' focus on DEI at work was a good thing; that their organizations placed the right amount of attention on efforts to increase DEI in the workplace; that they had policies to ensure fairness in hiring, pay or promotions; and that they had trainings and meetings on DEI. Women were more likely than men to say DEI at work was important, and half of all workers said it was important to work at a place that made accessibility for disabled workers a priority.

Best practices for DEI training and education

Current trends and best practices for DEI training call for a narrowly tailored, focused and strategic approach that addresses the specific challenges and issues in a company, firm or organization.

Certain approaches, we know, do not work. A one-and-done strategy cannot adequately address issues of bias, implicit bias and DEI in the workplace, nor can a two-hour catch-all training adequately train employees in everything they need to know. Such an approach, with a quick 10-question quiz at the end, does not create measurable goals, success metrics, outcomes, or accountability. One-time and catch-all training will not appreciably change things in the workplace.

Instead, organizations must embrace initiatives that will infuse DEI into their workplaces. A May 2021 Harvard Business Review article, "5 Strategies to Infuse D&I Into Your Organization" by Gena Cox and David Lancefield, suggests the following initiatives:

·      Infuse D&I throughout the organization.

·      CEOs and others at the top must lead by showing their own commitment to D&I.

·      D&I cannot be just a function of HR; it must be infused throughout the entire organization, as reflected in the budget, executive level staffing and leadership support, resources to do the work, and inclusion in performance goals.

·      Hold executive level leaders accountable for the success of D&I with performance metrics that measure their performance around employee engagement, creating a psychologically safe environment for employees, and ensuring fairness and equity in their day-to-day employment decisions.

·      Eliminate implicit bias at the core level through policies such as pay equity, hiring and promotions.

·      Pivot from traditional diversity training to leadership development coaching. Such training focuses not just on awareness of issues or making people feel targeted and singled out, but it provides skills for being successful in leading and coaching teams, for facilitating employee engagement and dialogue.

The key question for organizations, according to Aparna Rae, who authored a December 2023 Forbes article on DEI, is not whether DEI and training are essential, but how to make them more effective. She says businesses must ask how they can tailor investments to resonate with the diverse experiences within the workforce, as well as how to align their organizational ethos with social issues that matter to employees. Rae concludes that organizations must evaluate the effectiveness of their efforts and focus on systemic changes to their policies and practices, as well as providing continuing learning opportunities.

A January 2019 study by the Boston Consulting Group says that organizations should first do an assessment and collect data on diverse employee experiences before developing programs and solutions. The study's authors suggest that organizations focus on implementation just like any other business priority; leadership commit to the program; metrics are used to measure progress; employees are included in the assessment and problem-solving; and policies are reviewed to ensure they fully promote equitable practices and outcomes.

Some other ideas

From my own career overseeing and counseling organizations about DEI training and programs, I have some additional suggestions. Organizations should hire and/or partner with individuals and organizations that do this work as a part of their core business. They should work with those companies or individuals to develop a comprehensive plan and analysis that examines organizational challenges and what employees see as the root cause of those challenges. If they perceive that bias exists in the organization, identify its form - pay, promotional opportunities, perceived favoritism of one group over others.

A comprehensive plan and strategy might include the following:

·      A series of focused trainings over an extended period of time, not just once every one or two years

·      Facilitated dialogue, especially after major, potentially traumatizing events

·      Book clubs and speakers on issues that expose employees to diverse viewpoints

·      Providing employees community service time to work on causes and issues

·      Hiring and recruitment strategies targeting individuals outside of the norm for the firm or organization

·      Mentorship programs that provide employees with guidance and insights on how to thrive within the organization

·      Summer internships and scholarship opportunities for individuals who may not have had the same privileges or advantages as others

Employees should also be held accountable for DEI efforts. Organizations can do this by letting workers know there is zero tolerance for certain behaviors and modeling this at the top leadership levels; conducting investigations when inappropriate conduct occurs in the workplace; taking corrective and remedial measures based on the outcome of investigations; holding employees accountable for respectful behavior and communications in their performance evaluations; providing coaching and other support services when employees engage in a manner inconsistent with corporate goals and values; and providing continuous learning and growth opportunities for employees.

The State Bar of California in its First Annual Report Card on the Diversity of California's Legal Profession calls for workplace leaders to track data on recruitment, hiring, promotion and attrition of attorneys; make entry-level new hires consistent with the changing demographic of the State Bar; set measurable and visible diversity and inclusion goals and report on progress; have clearly defined and communicated goals for advancement and promotion; ensure all attorneys have equal access to resources and experiences within the firm; offer career and professional development programs that align with advancement criteria; provide executive coaching and leadership development for attorneys to allow them to develop and expand their skills; develop ways to solicit feedback from attorneys; regularly review how work is assigned and evaluated; and conduct audits to ensure salary and pay equity.

Attorneys are encouraged to take an active role in advancing D&I efforts by participating in goal-setting efforts and holding employers accountable to those goals; learning and understanding what it takes to advance within the organization; and understanding compensation and salary metrics.

Conclusion

As attorneys, neutrals and legal professionals we all have a responsibility to understand issues of bias, implicit bias, DEI, and DEIB in the workplace and in the firms that we work in, run and manage. We must first look at ourselves and hold ourselves accountable to these principles in our engagement with those in our organizations, with each other as colleagues - even those on opposing sides - and with the clients, individuals and organizations that we represent. We must hold ourselves to a higher standard and model the behavior that we expect of others.