Government employers’ unique challenges in implementing diversity, equity, and inclusion

On July 11, Verse Legal’s Bonnie Levine presented alongside Scott Horton of Horton Law PLLC at the 47th Annual Conference of the New York State Public Employer Labor Relations Association in Saratoga Springs, New York, to discuss the emerging legal issues in the space of diversity, equity, and inclusion (“DEI”), particularly as it relates to public employers. 

Companies and organizations worldwide are trying to make meaningful progress on DEI, and government employers are no exception. How to define and measure that progress is rarely clear, and especially for employers who pride themselves on making data-driven decisions, it can be difficult to strike the right balance of using data to advance DEI while collecting, analyzing, and using it in a way that is respectful and legally compliant.  

Government employers must also grapple with legal issues not applicable to private employers. For example, sunshine laws allow any citizen to file a request and obtain access to data and information that private employers have more flexibility in keeping private. In administering employment relationships, they must navigate merit systems and employees’ constitutional rights, increased whistleblower protections, and other regulations that do not apply to other businesses. 

The discussion covered DEI trends applicable to all employers including:

• Public statements in reaction to current events
• Thorough supplier vetting
• Tech-enabled recruiting strategies
• Resourcing employee resource groups
• Linking executive compensation to DEI goals
• Hidden risks associated with “performativity” or “diversity-washing”

According to Levine and Horton’s presentation, “a business using DEI in marketing has already decided to take a certain degree of a certain kind of legal risk. … There is no risk-free option, only different types of risk.” When employers take a box-checking approach, “they dig themselves a hole in DEI and still wind up with legal disputes.” These can stem from issues including unpaid labor from disadvantaged groups, harmful/inexpert training, and misleading data aggregations. Fundamentally, how a public agency–or any employer–approaches these and other topics influences the type of legal risks they will face.