By Mark Carey
DEI is everywhere now, in colleges and universities, corporations, at Glassdoor, at the Securities & Exchange Commission. It is a new multi-billion dollar business industry catered to the new elite to solve an old problem – bias. From my vantage point as an employment attorney representing employees, DEI is a joke with no punch line. If DEI was impactful and effective, then I am not seeing it. We are just seeing more and even more rampant discrimination in the workplace. It is as if the opposite effect of DEI is occurring- more discrimination. The bottom line is DEI is a marketing and propaganda instrument used by corporations and nothing more.
Corporations are themselves to blame for the decades long history of employment discrimination in the American workplace. These private government entities rule with an iron fist paternalistically beating down employees into submission and coercion. I say coercion because managers from every race, gender, sexual orientation, etc. do the bidding of their masters and the shareholders on Wall Street. These servant managers are too fearful to rock the C-Suite less they jeopardize their careers within the organization. The Executive masters dance the same tune but nothing changes. Let’s be clear, unless employers become more transparent and more humane to employees, DEI initiatives will die and discrimination bias will persist. Discrimination pays!
My Transparency
I must be fully transparent. During law school I read the DEI and critical race theory bible authored by Derrick Bell, “Race, Racism, and American Law”. Honestly, as a political science undergraduate and fan of American history, the law course based on Professor Bell’s book was a profound experience, overshadowing all other courses I was “proscribed”. (My homage to a very thoughtful former Law Professor of mine).
Discrimination in the Face of DEI
In my professional life, I encounter stories of discrimination and failed DEI initiatives daily.
For example, I recently took a call from a DEI titled employee at a well-known company that makes money relaying the transparencies via employee reviews of other companies. The employee was among the BIPIOC (Black, Indigenous, and People of Color) population. He/She was experiencing illegal bias from the DEI executive that the company’s DEI initiative was meant to protect. The company stated publicly, “in the workplace, diversity, equity, and inclusion (DEI) is a holistic approach to hiring, empowering, and retaining a diverse workplace. The goal of DEI is to create an environment that encourages representation and participation of diverse groups of people, including people of different genders, races and ethnicities, abilities and disabilities, religions, cultures, ages, and sexual orientations and people with diverse backgrounds, experiences, and skills and expertise…For a DEI policy to be successful, it can’t be just a hiring strategy or an occasional workshop; it has to flow through the entire organization. Creating an environment where employees understand what it means to be inclusive can help give your team members a sense of belonging.” This statement was written by the DEI lead in the organization who discriminated against the above employee- it was maddening to listen to the employee’s recounting of the events and I felt sorry to hear her experience.
This was not the first time I have had a discussion with DEI personnel experiencing combative internal relationships with their DEI peers. When I say combative, I mean outright discrimination.
In another recent example, an African American employee was screamed at by her white supervisor and told she has an “attitude”, which is code for racism at work. “The angry Black woman stereotype has penetrated many parts of American culture, including the workplace. This pervasive stereotype not only characterizes Black women as more hostile, aggressive, overbearing, illogical, ill-tempered and bitter, but it may also be holding them back from realizing their full potential in the workplace- and shaping their work experiences overall.” (Source). Ironically, the employee above was the leading salesperson within the organization and highly paid. I checked out her company’s (a public company) DEI initiatives on the company website and found the following window dressing I see repeatedly used: “We are on an exciting journey to build a culture that celebrates diversity and allows everyone to bring their true self to our _____ community.” In the case of the employee above, her supervisor sure brought her “true self” to work to manage this employee! The supervisor not only labels Black women as having “attitude problems” but she also promotes all other white employees. She intentionally leaves behind one highly educated Ivy League Black employee in the dust and gaslights her with defamatory statements about her performance to further suppress her career within the company. The company’s DEI marketing piece further states, “Our success depends on the diversity of perspective, thought, experience, and background within our workforce. We recognize that a diverse and inclusive workplace leads to more innovative ideas, more fruitful collaboration, and a more vibrant culture.” I am deeply sorry, but the above employee is currently so stressed out she is undergoing treatment for “situational depression” and has been prescribed medication to cope with the workplace hostility and fear of working she now possesses. Adding insult to injury, the employee has already complained to the Human Resources department three times without resolution. As you know, company investigations are worthless and do nothing to remedy the DEI fiasco we see far too often.
The employer I mentioned above further stated they wanted to “empower our employees” by “creating a more inclusive work environment while promoting a welcoming and respectful work environment. Our ERGs (employee resource groups) empower and connect employees across seven categories: African Descent, LGBTQ+, Sustainability, Veterans and First Responders, Women, Hispanic/Latin, and Young Professionals.” Give me a break! This sounds more like Search Engine Optimalization to attract visitors/potential employees/customers to the website I collected this from. The level of discrimination experienced by the employee in my example above did not feel welcomed, did not feel respected, did not feel empowered and finally was not remotely connected to her white supervisor and coworkers, who were all promoted. But if you like this marketing message, they left a link at the bottom to “Join Our Team”. Go team go.
The Failure of the DEI-Industrial Complex
I found the following conclusions from an article in the Harvard Business Review quite illuminating about how in-effective DEI is within the corporate environment:
“Inclusion (DEI) industry: the actual efficacy of an uncomfortably large proportion of our ‘flagship’ services, talking points, and interventions- unconscious bias training, racial sensitivity workshops, the ‘business case for diversity,’ resume anonymization, and the like- is lower than many practitioners make it out to be.
Unconscious bias training rarely changes actual behaviors and has little impact on explicit biases. A meta-analysis of hundreds of prejudice-reduction interventions found few that unambiguously achieved their goals. Many popular interventions run the risk of backlash, strong adverse reactions that sustain or even worsen the inequality that practitioners attempt to eliminate. Even ‘the business case for diversity,’ a decades-old rhetorical framing and justification for DEI work, has been found to backfire on marginalized groups’ feelings of belonging and weaken support for diversity programs when organizational performance drops.”
A Proposed Solution for the DEI Fiasco
The HBR article proposed the following solutions to solving DEI fiasco and perfecting it. However, the author just cannot overcome the power of the employer and its insatiable desire to protect itself from employee liability. DEI is not in the best interest of the employer because a truly effective DEI would divulge too much internal corporate bad actor activity. DEI is merely a cover for protecting the employer against employees who challenge their illegal employment activities. Notwithstanding this reality check, the author proposes the following solutions:
(1) “Identify the DEI challenges before prescribing DEI solutions:” “Too many organizations ‘start’ their DEI journeys with arbitrary DEI interventions that have no clear objective.” The author suggests “your organization should start by listening and learning through DEI audits, employee surveys, focus groups, and other interventions that collect valuable data required to take effective action, including disaggregated demographic data.” Aka EEO-1 Data Collection Form required by all companies. The EEO-1 Component 1 report is a mandatory annual data collection that requires all private sector employers with 100 or more employees, and federal contractors with 50 or more employees meeting certain criteria, to submit demographic workforce data, including data by race/ethnicity, sex and job categories. As an employment attorney, having access to the treasure trove of DEI audits, employee surveys, focus groups etc. would yield a damaging blow to employers. This author suggests transparency, but no employer will permit this disclosure for fear of an endless stream of employment discrimination cases. DEI initiatives will fail for the above reasoning, i.e. disclosure equates with liability.
(2) “Finding the right specialists:” “While there has recently been pushback in the industry against “one-size-fits-all” solutions, the continuing demand from organizations for DEI generalists incentivizes practitioners to continue offering these exact things, and has no doubt contributed to the rapid proliferation of cookie-cutter DEI firms and consultancies offering virtually the same services.” The author proposed more substantial research and vetting of DEI specialists to go beyond the visible list of DEI influencers. Hey, maybe I can have a second career as a DEI specialist? What are the qualifications anyway? The author suggests speaking with the consultant’s references, seriously? All the consultants are in it for the hourly fee to charge employers to tell employers what they already know. This is circular logic if you accept the notion that employers never wanted DEI in the first instance; it’s bad for business.
(3) “Measure not only inputs but outcomes:” (the proverbial black box analysis). The author notes “…organizations rarely connect their DEI initiatives to the outcomes they aim to achieve, and if they do, it’s often in an aspirational rather than a tangible sense.” The author proposes, “[i]nstead, your organization should create tangible outcomes it aims to change tied to its DEI data and develop clear indicators and metrics to know when those outcomes have been achieved… These indicators and metrics allow an organization to hold stakeholders accountable, identify and celebrate an initiative’s success or failure, measure return on investment, and make important decisions to tweak or change initiatives that aren’t working.” I cannot stand “corporate speak”. This is utterly devoid of reality. Nowhere does this author address the actual discrimination cases that are filed annually against the company both internally and externally. Company investigations are not transparent, even if you work at Bridgewater Associates. More profoundly, employers don’t take accountability for their actions, they cover them up and usurp a denial mentality. It is not in the employer’s best interest to accept accountability, produce data and metrics- unless they are faced with an investigation by the federal government, yet the federal government is financially ill-equipped to fight employers and federal courts never want to step in front of the business judgment rule. If you don’t believe this reality, you are not paying attention and employers have been successful in their manipulation management by their fixers on K-Street in Washington, D.C.
(4) “Having those do the work inform the budget for it:” The author states “well, what’s the average salary for a Director of Diversity? These naïve decisions from leaders with no experience or knowledge about DEI as a practice result in the perpetual under-resourcing of DEI work, and force practitioners to do too much with too little, and to take the blame for failure when they inevitably burn out…Greater resources for practitioners commensurate with the greater degree of specificity and accountability attached to the budgets we request.” This one is easy and like the others above. One way to kill an internal employer program is to provide it limited funding and control. Again, it is not in the company’s financial interest to dump tons of resources to reveal the lurid underbelly of the organization. It’s a joke- don’t you see?
The author of the HBR article closes with these parting yet insightful words, “the DEI-Industrial Complex will persist so long as there are corporations that care more about going through the motions than eliminating inequality and effecting actual change, as well as practitioners that find this acceptable…” I could not say it any better. There you have it, even the author of the article realizes the power of the Employer as Private Government entity dictatorship sovereign and DEI has literally no chance of survival. Employers merely window dress DEI but nothing more.
The mighty corporate industrial complex and the bias it pedals cannot be remedied with DEI. The private government employer is powerful. DEI will fail. I am apologetic to provide this dismal outlook about DEI, but we all need to confront the elephant in the room. Employers do not want DEI! They and their handlers just want you to think they do. It’s capitalism at any cost, and DEI is just a hinderance. Until DEI makes a corporation money, it is merely a marketing piece trouped out to sooth the American workforce and many socio-political minded people. This is the deep dark secret that no one addresses.
Conclusion and the Real DEI
If you want an effective DEI program, here it is. We are all Americans, regardless of race, gender, ethnicity, religion, disability and age. We are told we are all equal under the law. To be an informed American today, one has to listen to the debate on both sides without judgment and with “respect”- only then are you enlightened. Follow the golden rule, treat others as you would want them to treat you- the best anti-bias rule one could learn from. Listen more, judge less and your life will be more enjoyable and less stressful. Stop dehumanizing one another. This is DEI and not the crap bantered about to corporations large and small for an hourly fee. My information is free- use it wisely.
For more information, please contact our employment lawyers at Carey & Associates, P.C. at 203-255-4150 or email to info@capclaw.com.
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