Take Five: Hiring diverse talent to overcome the quit rate

Takefive Panel

With people quitting their jobs at a record pace, employers in Madison and elsewhere are focused on finding quality talent, and many also have goals for increasing the diversity of their workforces. A diverse workplace can result in positive outcomes for a company’s culture and bottom line but recruiting and retaining diverse employees can be challenging. In this Take Five interview, attorneys Erik Eisenmann and Skye Parr, both with Husch Blackwell law firm, talk about recruiting and retaining diverse employees, and they offer legal advice on how to achieve those goals without running afoul of state and federal anti-discrimination laws.

We’re in a pandemic-inspired era that is being called the Great Resignation, in which people are quitting their jobs in record numbers for greener pastures and sometimes to start their own businesses. With so much focus on addressing the labor shortage, are employers losing focus on anti-discrimination compliance?

Parr: “I’ve been looking into the Great Resignation, how employers are looking at it, and how employees are looking at it. I really hope companies don’t lose focus on their DEI efforts. With the Great Resignation, you must be creative. Companies can take different steps. For example, how do we even define diverse? What are we looking for? Whether it’s race and ethnicity, but also there are factors that people kind of neglect — invisible diversity traits that some people don’t even think about, whether it’s people with disabilities, military, and people who are refugees. In my mind, with the Great Resignation and with the pandemic, companies have been tempted to scale back on their DEI efforts. We need to push forward, push through this. It’s going to take its toll, but at the same time, we just have to be more creative in how we seek out diverse individuals.”

Eisenmann: “This is occurring the last few months, post-George Floyd, which is a time when employers have been more attuned to these issues than they ever have been before, and employees have been more sensitive to them as well. So, it’s front of mind in a way that it hasn’t been historically, so that’s part of the reason that it hasn’t necessarily dropped off the radar. And the other point I’ll make is that you’ll see, as businesses are competing for talent, business is thinking about the ways that we can keep our employees or recruit new employees. And they are talking about traditional things like compensation or improving office space or job flexibility. But one of the prime contingents we are talking about, folks who are considering making these moves, are millennials and younger generation employees, and those are employees who view diversity and a businesses’ commitment to diversity as a fundamental factor for them — not just as the icing on the cake but one of the key items they are looking for. So, a business that fails to continue to invest in this space is putting itself at a competitive disadvantage when trying to retain talent.”

Since the pandemic hit, we’ve had a new presidential administration take over, which typically brings change in labor law or enforcement of those laws. So, what if anything has changed recently regarding employment discrimination laws

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Erik Eisenmann

Eisenmann: “There are two things that are front of mind for employers. The first is that under a Democratic administration, we traditionally see increased investment and increased enforcement activity by federal agencies like the OFCCP [Office of Federal Contract Compliance Programs] or the Department of Labor or the EEOC [Equal Employment Opportunity Commission]. So, we anticipate and have already observed, both from a public policy standpoint and an enforcement standpoint, an increase in the amount of activity from those agencies. We’re seeing more investigations, more processing of cases, and potentially more litigation in the space of equal employment and discrimination.

“Toward the end of the Trump administration, you’ll recall there was this back and forth about the executive order on diversity training. So, the Trump administration implemented this order, which restricted diversity training, sort of in the vein of the critical race theory. They prohibited what they consider to be focusing on white privilege or race theory. So, that order is issued, a lot of our clients were scrambling and saying, ‘Well, what does this mean for trainings that we already have in place?’ And our advice was generally, we didn’t think that it would impact it too materially.

“But when the Biden administration came in, he signed an executive order that reversed that. So, we’re back at the status quo, and businesses that have been exploring training that goes beyond legal compliance, but more broadly DEI, are no longer constrained by that executive order.”

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Skye Parr

Parr: “Another thing I wanted to bring up is the travel bans. There are a lot of travel bans that were occurring based on Muslim-majority countries or African countries that in a similar vein during the Trump administration, he pushed forward. But then during the Biden administration, he took steps to dismantle those, and he issued a proclamation ending discriminatory bans. Going back to your first question and how we’re reaching out to diverse individuals, whether they are refugees, whether they are immigrants, these are all things that I’m sure employers are concerned with and thinking about during their hiring efforts. So, this is definitely something to keep an eye on.” 

There are times when these changes come fast and furious. Other than stay in periodic touch with your business counsel, what are the key components of a strategy that keeps you ahead of the curve on compliance?

Parr: “It really comes down to the fact companies need to look internally. There is a tendency for companies to look externally. How are they helping the community and everything, and that’s great, but it starts where you look at your workforce. You look at who comprises the C-suite. Who are the executives? Who is your workforce? And then you need to take that time to gather the relevant data, whether it’s demographics of your workforce, looking at equity and how much you’re paying them, and how the compensation packages work. Who is getting promotions? Who is staying the longest? For me, one of the biggest pieces of advice I would give is taking that time to reinforce that commitment to diversity by gathering the relevant data to see what you’re working with.

Are you talking about a self-audit?

Parr: “Yes, just reaffirming your commitment to diversity, but really taking the steps to analyze what’s going on. A lot of companies are a little shy to pull back the curtain and see what’s going on. And then you can go forward, whether it’s building strategic plans or looking at your policies. You get this idea of where you need to start, so it doesn’t become as overwhelming as it may seem.”

Eisenmann: “Two things come to mind. You mention the idea of a self-audit. That’s a great idea, but the thing to keep in mind, as we put our lawyer hats on, is that if you engage in that sort of practice without outside counsel, the findings of that audit are discoverable in a future proceeding if you face some sort of discrimination lawsuit. So, one of the benefits of working with your outside lawyer in doing that kind of audit is that it can be protected by the attorney-client privilege. If you find things that create the need to make changes, you’re able to do that without worrying about that turning into a legal risk down the road.

“And then, from a specific standpoint, when you think about topics that might be ahead of the curve, Skye mentioned this concept of pay equity. We have seen an increase in pay equity laws being passed on a state basis in some states in New England and out in Colorado for instance, and that is an area where we are anticipating additional movement. And so, Wisconsin and some of the local counties or municipalities might pass laws that require employers to do these sorts of assessments or ensure that female employees are not earning less for the same work than male employees. That’s an area where employers could do some homework to get ahead of the game.”

This question is where the creativity comes in. Staying compliant with anti-discrimination laws is well aligned with diversity, equity, and inclusion programs. What advice do you have for employers when it comes to meeting their diversity goals and doing so in a way that 1) drives business performance, and 2) does not run afoul of state and federal anti-discrimination laws? 

Parr: “We have the recruitment, going out there and trying to seek out diverse talent. And then what do you do when you’re interviewing and have the talent. When you’re recruiting, you want to make sure that you’re looking at all the different populations of diverse individuals. There are 12 things we can look at. We have the refugees, immigrants, people with disabilities, and LGBTQIA+. Those groups, while they are not necessarily visible at the forefront, they are just important to include when you are looking out at diverse populations. So, make a cognizant effort to look at your professional organizations, look at schools, and make that targeted approach.

“One of the strategies, too, is to slow down. There is a tendency to hire people as quickly as you can, just to get people into this position, and you want to think about it in the longer-term. The Great Resignation is an important thing to keep in mind, but at the same time, especially with DEI efforts, you want to think about it more strategically and long-term and how you’re going to diversify your workforce.

“And also, you want to make sure your descriptions for your job applications are straightforward. You want to make sure you don’t take out people before you even interview them. So, keep in those required job descriptions rather than the preferred ones. Make sure, looking at your goals, that you have everything in that you absolutely need and take out those preferred characteristics that you may not need and may not be necessary for the role.”

“Moving forward to the interviewing stage, you don’t want to talk about any protected characteristics. You want to make sure that you train interviewers on the questions that you’re going to ask them and ask the same things from each candidate, and not go into a space where you could potentially bring up someone’s protected characteristics and then we have an issue there. So, you want to make sure that you have interviewers trained, you want to talk about what you’re looking for in the role, and you want to make sure the notes that you’re taking don’t refer to a protected characteristic because, again, that can have legal ramifications down the road.

“Overall, and it’s important when you think about hiring a candidate, you want to consider diversity as just one factor in an overall assessment of the candidate. We’ve seen some, few but some, issues of reverse discrimination. To get past that, one of the things you must focus on is that diversity is just one of many things that you look at. It can’t be the reason you hire someone in and of itself. It’s just one factor among multiple factors. And then overall, in a general sense, the company needs to have diversity goals rather than quotas or numbers that they are trying to reach. And so, in general, you want to stay away from anything having to do with numbers and diversity. You want to move to more of a general strategic goal in your hiring decisions.” 

When you talk about establishing relationships with schools, I assume you mean not just public and private colleges or universities in your geographic region, but also historically Black colleges and universities?

Parr: “That’s absolutely along the lines of what I’m thinking. For me, for example, I’m from New York. I had never been to Wisconsin before, but I went to school in Wisconsin, and I stayed after graduation. And so, you just don’t want to exclude anyone, especially during this pandemic, when we’ve realized the links of remote work, and jobs that can be done remotely should absolutely be considered, especially when reaching out to diverse individuals. And so, for example, with HBCUs, community colleges, or colleges outside your specific reach or knowledge, it’s even more people to bring in who have different perspectives than you.”

Eisenmann: “The thing to focus on that might be innovative is to leverage your internal existing resources. So, if you have diverse individuals in your organization, they are going to be the greatest resources in determining where to direct your efforts. They will be the ones who know networks, organizations, and schools. They will be attuned to the places where you can get the most bang for your buck from a DEI standpoint. Engaging in that communication, involving those diverse individuals, regardless of the level they are at in the organization, will pay dividends in terms of identifying fruitful places to look and empowering those individuals in your organization to be part of the team and part of that process. That serves both of those purposes.

“The other point I’ll make pertains to the legal issue. There is a concern of some businesses that if I’m investing time, money, and resources in recruiting diverse or underrepresented populations, am I at the risk of reverse discrimination lawsuit? And our advice to clients is that is a very small risk, especially if you approach this in the right way. Those reverse discrimination claims are rare, they are difficult to prove, and there have been very few of them that have been successful. That’s because there is a recognition by state and federal courts that it is a unique and rare employer that is discriminating against the majority or overrepresented members in a workforce.

“So, unless you have a concrete, specific, numerical goal that you’re trying to meet, as Skye referenced, or there is evidence that you are excluding men or white applicants in some sense, those are the things that can get you in trouble. But if you’re approaching this in a wholistic way, there is not a material risk, even if you are investing or pushing or seeking out diverse talents that you could consider. It’s good to have that in mind, but that should not be a material impediment to continuing to invest and to drive in that direction.”

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