Mintz on Air: Practical Policies - DEI Diplomacy

In the latest episode of the Mintz on Air: Practical Policies podcast, Member Jen Rubin explores the concept of ‘DEI Diplomacy’ with Associate Corbin Carter and how the conversation around diversity, equity, and inclusion is shifting. This episode is part of a series of conversations designed to help employers navigate workplace changes and understand general legal considerations.

Together, Jen and Corbin discuss:

1. The current DEI legal paradigm and the challenges workplaces face relating to communicating about DEI
2. Tools employers can use to deploy diplomacy to create acceptance for DEI programs, even if those programs require rebranding
3. Understanding that continuing legal obligations in the workplace are not only consistent with DEI programming, but form the basis for better – and more trusting – workplace relationships.

Listen for insights on how employers can continue to evolve every day while maintain a workplace that is built on equity and trust.

Mintz On Air: Practical Policies – DEI Diplomacy Transcript

Jen Rubin (JR): Welcome to Mintz On Air: The Practical Policies podcast. Today's topic is DEI Diplomacy. I'm Jen Rubin, a Member of the Mintz Employment Group with a San Diego-based, bi-costal Employment Practice representing management, executives, and corporate boards. Thank you for joining our Mintz On Air podcast. If you have not tuned into our previous podcasts and would like to access our content, please visit us at the Insights page at mintz.com.

Today I'm joined by my Dallas, Texas-based colleague, Corbin Carter, who is also an employment lawyer. Corbin has been counseling clients daily for the past few months on how to navigate these new executive orders and has been helping clients conduct privileged audits of their diversity-related employment practices to ensure compliance. Now, my loyal followers know that Corbin is a past guest on my podcast, and the last time Corbin and I podcasted together, we concluded that the federal civil rights statutes and long-standing executive orders issued pursuant to them would survive a Trump presidency. Gosh, we may have missed the mark on that one. And that is one of the reasons Corbin and I are speaking today. This podcast is all about redemption. Thanks for coming back, Corbin. You are indeed courageous to dip your toes back into these very cold and choppy waters.

Corbin Carter (CC): Well, Jen, I appreciate the chance to be eligible for redemption here. At least those longstanding executive orders, those may have gone by the wayside, but Title VII still exists, I think, as of today. We'll see how things turn out.

The DEI Paradigm

JR: One for two on our predictions, right? Today, Corbin and I are discussing DEI Diplomacy. I'm sure my listeners are wondering what we mean by that. If anyone has noticed, the term DEI, which stands for diversity, equity, and inclusion, has been in the news quite a bit these days. The series of executive orders, the joint EEOC DOJ guidance, and the pending lawsuits against the federal government are aimed at discerning the meaning of the term DEI and its deployment or rollback in the American workplaces. Now, as employment lawyers, it is our purpose to provide guidance for the latest paradigm, the genesis for which was really the 2023 Harvard admissions cases. But the Trump administration has really amplified the attacks on DEI. The new DEI paradigm is focused on civil and criminal liability for deploying DEI in ways the federal government has been actively reshaping. And how all of this shakes out is really in the province of the courts and ultimately the Supreme Court. Our topic today is a slightly nuanced discussion of this issue, which is how do you even talk about the topic of DEI in today's workplace. Let me set this discussion up.

I thought a focus on the term diplomacy would be a really good starting point. The technical definition of diplomacy is that it is a process that includes negotiation, communication, relationship building, and the promotion of mutually beneficial interests. Another definition of diplomacy actually describes it as an art, the art of dealing with people in a sensitive and effective way. I'm going to attempt to combine these two concepts in a single discussion.

With all of that set up, Corbin, and before we get to the practical, because everybody who follows our podcast know I'm all about providing my listeners with some concrete takeaways to deal with difficult issues, can we talk about the term DEI? I'm sure you're familiar with the fact that many businesses are discarding the term in favor of other terms. Corbin, what are your thoughts on this?

CC: Of course we can. one of the difficulties with all of these executive actions is that employers are really left wondering what even counts as DEI, right? What is a DEI program, policy, initiative in the first place? Not to mention, there's very little clarity on what forms of DEI the administration might consider illegal, right? A good place to start, I think, is the nomenclature. What do we even mean when we reference DEI?

DEI is obviously short for diversity, equity, and inclusion, but it's an umbrella term. That term might be used to describe an organization's efforts to see people for the individuals they are and the life experiences that they bring to the workplace. So how do those life experiences shape what people are bringing to work? How can the organization tap into that diverse set of life experiences that its employees, its stakeholders have in order to better understand the communities where the organization is serving people and operating. How do we create frameworks and initiatives that allow those people and the organizations to succeed given those backgrounds and realities? If that's the premise of DEI efforts, then it doesn't really matter what you call those efforts. It's maybe DEI today, tomorrow maybe it's the Department of Access and Opportunity or the Community Engagement Office or the Inclusivity Initiative. What's important is what's behind the efforts and what goals the organization is trying to achieve.

JR: This all sounds like a rebrand to me. I don't think anybody would really argue with the fact that it's really important to see people for who they are in the workplace and you want to see people succeed. But the term DEI has been so tarred at this point as something that's, I'm sorry to say, nefarious. Will just rebranding DEI efforts get employers off the hook? Why is this label so important?

CC: No, not necessarily. I don't think you're off the hook. It's certainly true that the Trump administration's efforts have sort of made the term DEI itself taboo. But rebranding can cause less, what I'm calling, optical conflation. It's essentially meaning government stakeholders might be less likely to investigate or accuse where you have clearly lawful initiatives that pass the look test. They aren't accompanied by any forbidden words like ‘diversity’ etc If that's what you're working with, maybe a rebranding at least gets you to a place where there's less scrutiny. There's a lot of fear right now on the term DEI, and that fear is justified given the various executive orders we've seen and the actions that the federal and some state governments are taking. But the takeaway here is not the term itself, but what DEI is actually intended to accomplish.

DEI, at its core, is an extension of anti-discrimination law, including the ones that remain in effect today, like Title VII and its state counterparts. It aims to make workplaces fairer and ensure a level playing ground for all employees, regardless of particular characteristics or backgrounds. You can't really ensure fairness without recognizing, understanding that some people in workplaces have experiences that have made it more challenging to succeed. Really the point of DEI is simply recognizing that those challenges exist and that success plays out differently for different people who have different backgrounds.

DEI and the Workplace Challenges

JR: You say there are challenges in the workplace and there's no doubt that challenges exist for each and every one of us. We're human, we're unique, we each have strengths and weaknesses, and we bring to bear our skills and our inabilities and challenges in the workplace. Can you give some concrete examples when you say challenges in the workplace in the context of DEI, whether we're allowed to use that term or not?

CC: Let me give a few examples. This will go in with the theme we're talking about with diplomacy. These are pretty uncontroversial examples, I would at least posit. :et me give you one for each of those letters, the D, diversity, the E, equity, the I, inclusion. Thinking about diversity, let's say you have a workplace maybe where someone who is a veteran has war experience. Someone else has just transitioned and is emerging as their true self for the first time in their life. Someone else is juggling a career and five kids. Another person just got a cancer diagnosis. Someone just immigrated to this country for the first time in search of a better life. They're the first person in their family. Those are all very, very different experiences, and the law doesn't mandate that businesses ignore all of those unique circumstances. That's not the requirement. Study after study

after study shows that employees who feel valued at work for who they are, who get to work for an employer that considers those various perspectives, is a business strength to be embraced. Those employees who are given the tools that they need that are kind of bespoke to their circumstances, allow them to succeed. Those are the types of employment relationships that will last and will yield huge dividends for the organization.

So that's diversity. What about equity? How about the concept of pay equity? Pretty uncontroversial idea. The concept that if you're performing the same work as someone else, the compensation you're paid for that work shouldn't be different than someone else's just because of your religion, your race, your sex, your other protected characteristics. Again, that's a pretty uncontroversial proposition, but the whole concept is rooted in equity or promoting equal treatment.

What about the I? Inclusion. Maybe you have a workplace where 95% of employees have parents who obtained higher education degrees or maybe these employees came from higher socioeconomic backgrounds. It's very possible that the other 5% who don't, have had a very different lived experience and have had unique challenges associated with that experience. Maybe it's their first generation status or their path that has been challenging. If the workplace is set up to make those employees feel like outsiders from day one, the chance that that employment relationship thrives for either the individual or the enterprise, is not great. So if employers work hard to incorporate those employees who have that different experience so that they also have opportunities for success, that's valuing inclusion. Really the goal of all of this is to strip away assumptions and acknowledge that there are different paths to opportunity. That's the essence of equal opportunity. That's been the idea behind DEI or whatever else you want to call it, and that's what the law allows.

JR: It's interesting to me because the attack on DEI, in a way, is so counterproductive to what makes businesses profitable and, of course nonprofits achieve their mission, because if employees feel that they are valued, they're going to stay. All those investments that employers make in an employee's and the employee's passion for the employer's cause, that accrues to the employer's benefit. I would go a step further and say, people who feel valued by their employer are more likely to trust their employer, and that leads to a more trusting employment relationship, which is for those of you who follow our podcasts know that that's a continual theme I keep coming back to because as an employment lawyer who has been practicing for a few decades, to me, it's the creation of trust that really is the vital foundation for any successful employment relationship.

Communicating DEI in the Workplace with Diplomacy

JR: Let's go back to our discussion about DEI Diplomacy. In the new paradigm, Corbin, the characterization of DEI really seems to be something that is inequitable. We're making decisions according to those detractors that are not merit-based and that are based on these immutable characteristics. I think you and I would agree that this has evoked very passionate feelings about these issues. People feel very strongly about these things, and that's why I want to really shift this discussion to this concept of diplomacy. This whole controversy requires a tremendous amount of diplomacy and from that perspective, I mean to negotiate, communicate, build relationships, and promote common interests. Mutually beneficial interests, which is “you're my employee, I want you to do work for me, but by the way, I want you to be happy. I want you to trust me. I want you to put my interests first. But, by the way, I see you as a person and I care about you and I want to see you succeed and I want to see you thrive in my workplace” because that's the mutual part of it. “It's going to make my business successful.”

But Corbin, can you provide some guidance around how a business can negotiate the contours of DEI Diplomacy? Let's start with communication.

What does communication around this look like?

CC: It's so interesting when you say diplomacy and you give a broad definition upfront. What my mind goes to is what traditional diplomacy looks like. Like a United Nations model? You have all these countries and leaders coming together to negotiate things. When you think about diplomacy like that or in any kind of other circumstance, what is it that is at the heart of diplomacy? You have negotiations and agreements. What does every well-executed negotiation have in common? Whether you're sitting around the table as a world leader at the United Nations, whether you're in an employment mediation, whether you are negotiating across the dinner table from family, they all have in common that the parties that are negotiating let each other know what they want and then they start trying to find common ground. What are our commonalities? What can we agree on? How can we continue expanding the level of agreement as this negotiation continues? And hopefully it does. What about, at least initially, finding some easy common ground instead of focusing on more divisive policies? Who are your internal stakeholders, your employees, your C-suite, your board? What are all those constituents most likely to share as priorities? There are a lot of answers here. A desire to ensure the organization's financial success, to promote the organization's vital mission, to attract top talent, to retain good employees, to appeal to a broad base of consumers, customers, clients, to serve the communities the business is in. All of those are common objectives. So why not start the focus there? Why not focus on those priorities?

Maybe after that, it's about civility and thoughtfulness, which also come to mind when you think about traditional diplomacy. How can we have a robust and helpful conversation around these DEI issues? And how can we work together to ensure that everyone at the organization finds success so that some of the parts of the organization see that success too? People may and maybe will disagree on how to achieve that. There are a lot of different schools of thought. But like any other business issue that employers are facing, you've got to be able to bring people together, bring ideas to the table, weigh those ideas, and as a result of that, you're going to have more information to work with than you did before, and I don't think that's ever a bad result.

JR: It really sounds to me that what you're describing is building something rather than taking something down. DEI policies and practices seem to me, to not only build that trust, because again, it goes to the human factor that's so critical to your employment base as well as your customers and other stakeholders, but it's also a matter of practicality.

You need to really take a step back and think about how are your employment policies functioning? How are we communicating these issues? How are we putting these things into practice to make people feel seen and to make people feel valued? It seems like DEI is something to build up rather than to break down.

CC: Of course it is. It is about building relationships and maybe in non-traditional ways. If the goal of an initiative or an organization's goal is to divide or exclude, it turns out you'll probably end up with division and exclusion. If the goal is to unite and to include, then you're going to have people within your organization that are forging, again, those non-traditional new relationships. And those are going to become the foundation for the organization's common prosperity.

Promoting Human Relationships at Work

JR: The takeaway from this conversation is that DEI is absolutely critical in order to promote the human relationships in the workplace. But if necessary, changing the label in order to achieve that, if that will help unite individuals as opposed to divide them, is okay. In other words, we're giving the official diplomatic blessing to change the verbiage that's being used as long as those policies and programs are aimed at ensuring that fairness, that inclusion, that equity in the workplace. Frankly, I'm going to go out on a limb, and I don't even think it's much of a limb to say that you can't do that without understanding how important and critical these things are when it comes to having not only a highly functional workplace, but a truly successful one that's built on trust.

Corbin, thank you for this conversation. It's been therapeutic for me to have it because at least for me and I also know for you, a lot of these issues are so important in the workplace and talking about them and finding that common ground is becoming more important as we move forward in this new legal paradigm. There's a way to do it, and I'm showing a lot of optimism about it, I think you would agree with me with that.

CC: I co-signed that statement!

JR: Thank you. Regardless of whether we have to do a further redemption tour, which I'm hoping we don't. On that note, once again, I'm Jen Rubin. Thank you, Corbin Carter. And those who have tuned into our Practical Policies podcast, please visit us at mintz.com for more content and commentary from Mintz. Thank you.

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