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Legal Risks & Business Imperative of Diversity & Inclusion Initiatives

Explore the legal realities and imperative of proactive diversity and inclusion initiatives in the business world, while managing risks associated with recruitment, reverse discrimination, mentorship programs, and data protection. Learn from industry experts and cases.

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Legal Risks & Business Imperative of Diversity & Inclusion Initiatives

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  1. PROACTIVE AND Aggressive diversity & inclusion initiatives: the legal risks and business imperative

  2. MEET YOUR PANELISTS: Simone Francis Ogletree Deakins Shareholder Chai Feldblum Morgan Lewis Partner & Director of Workplace Culture Consulting Michelle Ybarra Keker, Van Nest & Peters Partner Kim Askew K&L Gates Partner

  3. Balancing the legal risks

  4. PROGRAMS & INITIATIVES: THE LEGAL REALITY Managing Risks Around Recruiting • Reserving Candidate Spots for HBCU or Female Colleges • Diversity Goals • Quotas • Requiring Females/People of Color on Every Interview Panel

  5. RECRUITING VIOLATIONS • Wilberg v. Google (Superior Court San Mateo Cal. Case No. 18-CIV-00442): Ex-YouTube recruiter accuses Google of hiring discrimination against white, Asian men.

  6. REVERSE DISCRIMINATION • Anderson v. Yahoo (N.D. Cal. Case No. 5:16-cv-000527): alleging that supervisors intentionally hired women and fired male plaintiff

  7. REVERSE DISCRIMINATION A segment of the bar is actively pursuing these types of claims: Damore v. Google (Santa Clara Case No. 18CV321529): alleging discrimination against white and male employees through “taking into account gender and/or race when considering promotions …” Must simultaneously defend Ellis v. Google (San Francisco Case No. CGC-17-561299): “Google has violated and continues to violate the [FEHA] by discriminating against women … [by] promot[ing] women more slowly and at lower rates than similarly-situated men …”

  8. PROGRAMS & INITIATIVES: THE LEGAL REALITY Data – Is it Protected? • Analyzing Performance Rating Data By Race/Gender? What to do with the Results? • Incentivizing Leaders – Adding D&I Metrics to Performance Reviews.

  9. PROGRAMS & INITIATIVES: THE LEGAL REALITY People of Color or Gender Based Mentorship/Sponsorship • How to Structure? • Engagement? • Benefits/Detriments?

  10. PROGRAMS & INITIATIVES: THE LEGAL REALITY Rooney/Mansfield Rule • Diversity Lab Mansfield Certified? • 30% Rule (Women, LGBTQ+, People of Color for any significant leadership role) • Rooney Rule • Require at least 1 female/minority in candidate/promotion pool before interviews take place • Protections against gender/race playing a role in decision? • Safeguards from preventing unqualified candidates from becoming the “token” female/person of color candidate?

  11. PROGRAMS & INITIATIVES: THE LEGAL REALITY Affinity/Employee Resource Groups • Legal and Business Risks • Discrimination • Unfair Labor Practices • Demands for Data • Best Practices for Implementation

  12. TAKING RACE & GENDER INTO ACCOUNT: A MORE EXPANSIVE LEGAL VIEW • Perspective from a Former EEOC Commissioner • Basis for and Weaknesses in the Conventional Legal Analysis • An Alternative Legal Analysis • Practical Considerations

  13. THANK YOU!

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