TBA Law Blog


Posted by: Christy Gibson on Sep 22, 2014

By: Fred Bissinger

I.  Introduction – Origins of Diversity & Inclusion

The United States is and always will be a nation of immigrants.  The fabric of our society and our overall success has, in large measure, been facilitated by our ability to accept and integrate people from virtually every walk of life.  The nature of our society has permitted newly arrived groups to retain their unique racial, ethnic, cultural, and religious identities.  While our ability to integrate and assimilate people and cultures from all corners of the world is both unique and a fundamental reason for our nation’s success, that process, by its very nature, can take a significant amount of time and be very difficult – as change is hard.

Diversity and Inclusion (“D&I”) initiatives, which can greatly assist in this integration and assimilation process, have been the subject of much discussion and analysis in the last decade or so.  

II.  Why is D&I Important?

A threshold question for many businesses is why is D&I important at all?  The “business case” for D&I has many components, but distilled down to its most basic elements – an effective D&I program will enable a business to increase the skill-set of its workforce, increase retention and recruitment, expand its customer base, improve the quality of its products and services, and thereby increase the “bottom line.”

III.  What are Your D&I Objectives?

As with most strategic analyses and planning processes, a fundamental (if not the fundamental) question is what is your business trying to accomplish with a D&I program.  Clearly, attracting and hiring qualified employees who are diverse is a fundamental objective of most D&I programs.   Once those diverse employees are on board, the next fundamental issue for analysis is how to integrate those diverse employees into the workforce, such that they believe that they are part of the team and are fully committed to the company’s vision for success.   This latter issue may well be the more challenging of the two.

Since 2011, our society has experienced some fundamental shifts given the events of 9/11 and the Great Recession, which has brought to light many additional issues for consideration in this context.  The following are examples of some of the more recent and challenging issues employers are grappling with in the D&I context:

•How to integrate four (very different) generations in a workforce?

•How to deal with our rapidly changing racial and ethnic demographics, including the Hispanic community which is now our largest minority group?

•How to deal with “Sandwich generation” employees who have caregiving- responsibility for both children and parents?

•How to re-integrate hundreds of thousands of Veterans into the workforce, many of whom have life-altering disabilities, especially those of a mental, emotional, and psychological nature?

•How to deal with changing norms and conflicting laws regarding sexual orientation and “gay marriage”?

This list is not exhaustive, but it provides a general idea of the number and complexity of the issues that must be considered by businesses in today’s world.  

IV.  What is Your Plan to Implement and Achieve Your D&I Objectives?

As with virtually every business activity, effective planning and implementation are fundamental keys to success.   This is likewise true with respect to establishing and implementing a D&I program. 

The first step is to identify what it is you want to accomplish with a D&I program.  The next step is training your workforce on the program.  Similarly, a D&I program must have an effective “reporting mechanism” by which employees can voice concerns, report problems, and bring relevant issues to the company’s attention for action.  An important, but many times overlooked, part of this process is obtaining and evaluating questions, comments, and feedback from the workforce.    

In very simple terms, an employer must communicate its expectations, but it must also listen to its workforce to determine whether the plan in place to effectuate the D&I goals is appropriate and effective.        

V.  Keys to Successfully Developing, Implementing, and Growing a D&I Program

While the success of a D&I program, like many other business initiatives, is dependent upon a host of factors.

A.  Leadership

The first and most important Key to Success is effective Leadership.  Obviously, the success or failure of leadership starts at the “C-Ring” level, including the business’ “Diversity Council” (assuming it has one).  Those who are ultimately “driving the train” have to believe in and support D&I efforts – both in committing appropriate time, money, and other resources, as well as actively and visibly participating in the program.  Absent such senior leadership buy-in, a D&I program will simply not succeed.     

B.  Core Values

The second Key to Success is identifying, publishing, training on, implementing, and closely monitoring the company’s Core Values.  Many companies have four or five very basic core values like integrity, a commitment to excellence, top-flight customer service, cost-effectiveness, and mutual respect, to name a few.  Identifying appropriate Core Values is generally not a difficult proposition. 

However, the more difficult issues are related to effectively implementing those core values, including how to: 

•ensure that the company leaders are setting the appropriate example in how they conduct themselves  (both at work and in their private lives);

              •effectively communicate the core values to the work force;

              •obtain true buy-in from all levels of the workforce;

              •monitor the progress of the program;

              •adapt to change in a timely and effective manner; and

              •retain the core values as the company develops and undergoes transitions in leadership.  

C.  Training

It is no surprise that training is a key to successfully developing a D&I program.  However, there are different types of training that apply in this context.  The first type is traditional company sponsored training on the company’s policies and procedures.  Another type of training is that obtained through outside groups and resources that help employees develop a specific knowledge base regarding certain D&I topics.  Yet another type of training is the equivalent of OJT – on the job training.   All of these types of training are necessary to successfully implement and develop a D&I program. 

D.  Management by Measurement

Objective measurements are certainly a preferred manner in which to evaluate a company’s performance and progress.  Measuring the progress of a D&I program is not necessarily an easy proposition, but it can be done.  It is generally easy enough to quantify how many people of different races, sexes, and national origins are employed and how those numbers have changed over time (or not).  Measuring the type of markets and communities with which a company does business, the amount of that business (in terms of volume and revenue), and the degree to which a company is accepted in diverse communities is objectively quantifiable information that can help evaluate the effectiveness and progress of a D&I program.  Further, as set forth above, businesses can in many circumstances evaluate the efficacy of a D&I program based upon changes in the “bottom line” – both positive and negative, and the sources of the revenue causing that change.

E.  Effective Communication

As with most endeavors, effective communication is a key element to success, and conversely, a failure to effectively communicate almost always leads to misunderstandings and problems.  Many common workplace problems, including those that result in internal complaints, EEOC Charges, and/or litigation stem from a “failure to communicate” in an effective manner. 

The issue for consideration is how to bridge that communication gap so that people with diverse backgrounds can effectively communicate for the betterment of the business and all of its employees.  One of the major benefits of an effective D&I program is that it brings people from diverse backgrounds together in a non-adversarial manner in which they are encouraged to better understand one another and learn how to more effectively communicate.  

F.  Effective Problem Identification and Resolution Mechanisms

Identifying difficult employment related issues and attempting to effectively resolve them is a constant challenge in the life of any business.  Developing and implementing an effective D&I program (including Employee Resource Groups) is one of the primary resources available to an employer for facilitating the identification and resolution of such issues in a timely manner as it creates a stable foundation upon which a business and its employees can evaluate and effectively deal with issues arising from differences of perspective based on the diverse backgrounds of those involved.

G.  AAO   

AAO is the military acronym for the phrase “Adjust, Adapt, and Overcome.”  It entails a commitment to deal with ever-changing environments in a timely and appropriate manner designed to achieve the designated objectives – no matter what.  Developing a culture of diversity and inclusion inherently facilitates a business’ ability and skill-set to identify, evaluate, and timely act upon potentially problematic issues in a professional and productive manner.     

H.  Accountability

As with any effective business practice, accountability at all levels – especially at the top – is an indispensable ingredient to a successful organization.   Accountability promotes confidence that “doing the right thing” will be appropriately rewarded, and failing to do so will likewise be properly addressed.   

VI.  Conclusion 

We have entered the age of the “Global Marketplace.”  Our employees, vendors, and customers are all going to be more diverse in the coming years.  The question for businesses is whether they will embrace the change and adapt, adjust, and overcome or try to ward off the change and carry on as usual.  

While D&I programs are not a panacea for dealing with all issues associated with the change in our society and the global marketplace, they are certainly a powerful tool that can enable a business to recruit and retain people from diverse backgrounds who have diverse skill-sets and bring new resources to the table, all of which can help the business achieve its strategic goals and render it better prepared to adjust, adapt, overcome, and succeed.

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FREDRICK J. BISSINGER is Regional Managing Member of the Nashville, Tennessee office of Wimberly Lawson Wright Daves & Jones, which he joined in 1999. His law practice includes an emphasis in handling employment discrimination and wrongful discharge matters at both the administrative level and in Federal and State Court litigation.  His practice also includes an emphasis on ADA and FMLA compliance, as well as workers' compensation and general liability matters. He received his Bachelor of Science, cum laude, in Economics from Washington & Lee University and his law degree from the Seton Hall University School of Law. Prior to entering private practice, Fred served in the United States Navy Judge Advocate General Corps from 1993-1997. Fred is a member of the Tennessee Bar Association and served as the 2012 - 2013 Legal Advisor for Middle Tennessee Society for Human Resource Management and the 2012 - 2013 Diversity and Inclusion Committee Co-Chair for the Tennessee Society for Human Resource Management.