Diversity and Inclusion

Picture this: A grocery store that only sells one brand for all of its grocery products. A dealership filled with purple cars. A sandwich shop without any meatless options for their sandwiches. For some, any one of these businesses would be acceptable to support. But for others, the limits that the grocery store and the dealership are imposing are too scarce or restrictive. If the grocery store expanded its brand choices, they could see a growth in sales. The dealership may also experience a better response if it added cars of different colors to its inventory. For both, diversifying their products could favorably impact their businesses. In terms of the sandwich shop, they could get along fine without offering any meatless options. However, if they became more inclusive by offering meatless options, they could potentially gain more customers in the process. These are all pretty generalized examples, but it’s important to see how businesses can suffer when they disregard the power of diversity and inclusion in product selection. But what about when it comes to the people they hire? That’s the topic of today’s video.

A quick note: some of the issues surrounding diversity and inclusion can be controversial and involve, to some extent, political arguments and assumptions over which people may disagree. Remember our purpose is to give you the information you need to successfully answer test questions based on this material, not to endorse any particular viewpoint.

Here’s what we’ll be going over in this review:

• Approaches to diversity and inclusion
• Conscious and unconscious bias
• Managing multigenerational workforces
• The Civil Rights Act and how the rights of the LGBTQ+ community tie in
• Reasonable workplace accommodations and religious beliefs and practices
• Distinguishing the difference between disparate treatment, disparate impact, and adverse impact
• And finally, Affirmative Action Plans

Let’s get started!

It’s important to understand that “diversity and inclusion” is not just a buzz phrase that’s used to describe the most appropriate way to address racial and gender discrimination. These two words have been paired as a concept and best practice for businesses to adopt. Diversity and inclusion are not always a combined effort or experience, and since many have confused the two to be one and the same, perception and even effectiveness has wavered for many companies. So, how does a company make the first steps to attain diversity and inclusion?

Inclusiveness Measures

Just as customers are more inclined to support businesses with diverse brands and products, many companies believe a high number of diverse employees can attract more competitive talent. Diverse candidates seek and flourish in an environment where they are not only seen but also included.

Something as simple as adding a “diversity calendar” to a company’s newsletter or intranet site can be an effective first step.

A diversity calendar acknowledges celebrations and holidays of religions and cultures beyond that of the historical majority. This gives employees who are already familiar with common holidays the opportunity to improve their knowledge by acknowledging or honoring other holidays and traditions. More importantly, it is inclusive to those employees who actually celebrate the events on the diversity calendar. Just by practicing this introductory step of inclusiveness, a company is recognizing employees who may be commonly overlooked.

Another common approach is training employees on diversity. What’s crucial here, according to experts, is that the definition of “diversity” should be clearly articulated to dispel the theory that it only applies to race, gender, and/or sexual orientation. Instead, it should be presented as understanding the distinctive contributions employees present, such as their language, nationality, religion, physical abilities, economic status, political opinions, work style, and more. The training approach and concept must be as layered as the subject itself.

Conscious Vs. Unconscious Bias

Diversity training would not be complete without addressing both conscious and unconscious bias. Bias is showing favor of a person, group, or thing against another in a partial or unfair manner. It can also be associated with being prejudiced or having an unyielding view to an experience or to people in certain groups.

Having a conscious bias is when you consciously display disapproving behavior towards a group or an experience. An example would be a person requesting a male mechanic when doing business at an auto repair shop that employs both male and female mechanics.

An unconscious bias is displayed differently and is often played out without you even realizing it. Let’s say the mechanic you requested to fix your car leaves it in worse shape than when you brought it in, and you return to the shop to speak to the manager. A few moments later, a woman walks up to you and asks how she can help. You again ask for the shop manager, and she confirms she is indeed the shop manager. This situation reveals an unconscious bias that only a male would hold such a position. This is an example of how forming an opinion or decision of someone that is not based upon reasonable facts can be detrimental to business relationships. For hiring in particular, bias can prevent a company from hiring the best candidates. Generally, objective measures such as work productivity, GPA, or test scores predict job performance better than subjective impressions in an interview, which leaves room for bias, unconscious or not.

Managing Multigenerational Workforces

Now let’s talk about multigenerational workforces. A multigenerational workforce is made up of individuals born during different generational time periods. Individuals in each generation have a different take on work experience, communication, technology, and so much more. Let’s take a closer look at these generations, starting with baby boomers.

Baby boomers, born between 1943-1964, received their name from the surge of births that took place after World War II. They tend to have a strong work ethic and remain loyal to companies for the long term. They value teamwork and can be competitive when they need to be. Modern technology may be embraced by some but avoided by others.

Descendants of baby boomers, Generation X, were born between 1965-1980. Their name derived from a book with the same title which was originally published in 1965. This group was exposed to the many changes in technology during the latter half of the 20th century and are well equipped to embrace it. At work, they are flexible and independent and desire a reasonable work-life balance. Similar to baby boomers, Gen Xers aren’t too apt to job hop, so they seek stability and show their loyalty in staying with one job for an extended period of time. They are also said to become great company leaders because of their eagerness to join forces and coach others.

Probably more commonly known as Millennials, Generation Y is the label applied to those born between 1981-1996. As you might guess, the name Generation Y comes from its succession to Generation X. However, the term millennial refers to the time period—the new millennium—when many in this group became adults. Millennials work well in a team environment, are technologically savvy, are well educated, and are great multi-taskers.

The offspring of Generation Y are known as Generation Z and were born between 1997-2015. Generation Z’s values reside in diversity, coaching, recognition, and learning and development. Companies have to be unique in their strategies in order to keep their interest and retain Gen Zers as employees.

Having a multigenerational team gives a company the benefit of diversity, but this benefit comes with the task of becoming knowledgeable on how best to communicate, coach, and even delegate responsibilities to individuals of each generation. For example, it probably wouldn’t be wise for the manager of a multigenerational team to assign a project to a Gen Z employee, then three weeks later, ask them how things are going. The lack of ongoing coaching and feedback they require could stall their interest or motivation and delay the progress of the project. Not being inclusive to the preferences and values of the Gen Z employee could harm the work relationship or even their performance. This shows just how important it is for leaders to be inclusive with all their team members.

Speaking of inclusion, let’s talk about the Civil Rights Act. The Civil Rights Act, passed in 1964, was designed to improve inclusion for certain groups in voting, education, employment, and public places. The Act originally banned discrimination against race, color, religion, sex, and national origin, but did not include protections for gay or transgender employees. Although the term “sex” was included, the law until recently only covered biological sex, not sexual orientation or transgender status. In June of 2020, the Act was reinterpreted by the Supreme Court such that “sex” now includes those in the LGBTQ+ community as a protected employment class. This decision specifically extended sex protections of the Civil Rights Act to transgender individuals. As a result, many companies are reviewing policies, such as dress codes, that may contain sex-specific policies that could conflict with this ruling.

Employers are also legally required to be fair and reasonable whenever employees bring to their attention any health limitations, religious practices, or other events or circumstances. Employers are obligated to make what the government considers reasonable accommodations. More commonly associated with the Americans with Disabilities Act, reasonable accommodations are required to be offered to any candidate or employee throughout any part of the employment process as needed. For example, a blind candidate may request a braille application, or that their personal information for their application be taken via phone. Employees in certain religious groups may require additional breaks throughout the day for prayer or other activities. A veteran who suffers from hearing loss may request a reasonable accommodation for special telephone equipment to type messages or to amplify sound. It’s important to keep in mind that reasonable accommodations are not considered to be preferential treatment under the law.

While we’re on the subject of treatment, let’s get into disparate treatment. This, like other types, is a type of discrimination that is not exclusive to the workplace. When people in protected groups are expected to undergo testing, screening, or other practices which are not required of those in other groups, they are experiencing disparate treatment. It can happen if a minority couple is inquiring about an apartment and are asked to share their income and employment information prior to being shown the apartment, without the same requirement for other groups. Having them submit personal information prior to seeing an apartment sends the message that other groups would be more preferred tenants. That, or because of their race or other protected characteristics, it is assumed that the couple cannot afford the apartment. In the workplace, an example of disparate treatment would be a working mother who is demoted from a leadership position for “poor performance resulting from taking multiple breaks throughout the day” to breastfeed her infant.

Unlike the overt discrimination that comes with disparate treatment, “disparate” or “adverse” impact is more covert, and isn’t usually deliberate. It often occurs when a business’ practices or policies have a negative impact on members in protected groups. An example of a disparate or adverse impact would be requiring all applicants for a dock worker position to be able to lift at least 75 pounds. This may seem like a reasonable statement within a job description. At the same time, physical abilities among male and female candidates can differ considerably. Such a requirement could discourage female candidates from applying, who may otherwise be well qualified.

When trying to determine if a protected group has been adversely impacted by a company’s selection process or other practice, the Equal Employment Opportunity Commission uses the four-fifths rule, also known as the 80% rule. This rule was developed out of a 1971 Supreme Court decision, Griggs vs. Duke Power, as a legal test for adverse impact. The following steps should be followed to calculate it.

1. Find out the job requirement that is adversely impacting the protected group. For this example, we’ll use the warehouse looking for a dock worker, which has the physical requirement for the dock worker to be able to lift 75 pounds.
2. Next, you must determine the rate of selection of employees by dividing the number of applicants selected by the number of applicants within that group.

There were 80 male applicants. Of those 80, 50 were selected, or hired. We would do the same calculation for female applicants, where 40 applied and 12 were hired. The selection rate for male applicants is 62%, and the selection rate is 30% for female applicants.
In the third step, you make note of which group had the highest selection rate, which are the male applicants at 62%.
The fourth step involves calculating the adverse impact ratio. To find this number, divide the lower selection rate of the female applicants (.3, for 30%) by the higher selection rate of male applicants (.62, for 62%). The result is 48%. Since the adverse impact ratio is less than four-fifths—that is, less than 80%—the EEOC would conclude that the requirement for dock workers to lift at least 75 pounds is shown to have an adverse impact on female applicants.
Disparate impact is not always held to be evidence of discrimination. It may actually be necessary, for example, for certain workers to be able to lift 75 pounds. However, in the event of a discrimination complaint, the company bears the burden of proof in establishing the necessity of employment requirements that cause disparate impact. It should also be noted that disparate impact mostly concerns larger employers, who have large enough workforces such that the ratios can be calculated with statistical significance.

Interestingly, while this rule is enforced aggressively against large blue collar employers such as police and fire departments, requiring applicants to hold college degrees for white collar positions has not been interpreted by the courts as having an adverse impact. This omission, a form of legally permissible discrimination allowing universities to be gatekeepers to highly desirable jobs, may be a key factor behind the impoverishing increase of tuition, fees, and student loan debt. Some believe this arrangement between academia and business launders covert discrimination by class or other characteristics and may be addressed by courts in the future.

While federal employment laws ostensibly require only equal opportunity, not equal outcomes, some have advocated for affirmative action, which seeks to reverse past acts of discrimination in jobs, education, and government funding.

Affirmative action plans enable employers to establish an environment where employees in groups who may have previously been discriminated against have more advanced opportunities. There are generally two types of affirmative action. Originally, affirmative action meant taking proactive steps to encourage applicants from protected classes to apply for job opportunities and to monitor the organization to prevent illegal hiring bias. Eventually, some forms of affirmative action began to introduce hiring quotas, that is, requiring that jobs be filled based on hiring a particular number of individuals of a protected group.

Hiring quotas are utilized to directly change the composition of the workforce. Grants and scholarships designed specifically for under-served university students may be offered as part of affirmative action. Federal contracts and funding may be offered to minority business owners as part of an affirmative action plan. Over the years, these plans have faced scrutiny for their effectiveness and legality. To the extent a plan utilizes quotas or specific hiring goals, it may be legally vulnerable to challenge as a form of illegal discrimination. Court rulings conflict in this area, so companies should seek legal advice from a competent employment law attorney.

Affirmative action plans are exercised in both private sector and government institutions. Federal contractors, or anyone else who does business with the federal government, are held to the same regard with Executive Order 11246, which prohibits them from discriminating based on color, religion, sex, sexual orientation, gender identity, or national origin. The order is enforced by the Department of Labor’s Office of Federal Contract Compliance Programs, also known as the OFCCP. Within Executive Order 11246, contractor terms and agreements are very specific on anti-discrimination practices, going into detail regarding acceptable practices for recruitment, apprenticeship selection, compensation, and termination.

We’ve covered a lot, so let’s do a recap while testing your knowledge: Are diversity and inclusion the same? Does discrimination have to be intentional to trigger possible legal consequences? If you answered “No” to either of those questions, you are on the right track! We talked about multigenerational workforces, from baby boomers to Generation Z. Did any of the work styles we mentioned resonate with you?

We pointed out earlier how diversity isn’t just about preventing discrimination. At the same time, knowing the background of the Civil Rights Act and its many expanded legal interpretations is necessary to avoid discrimination claims, including avoiding practices that may seem permissible or reasonable for those untrained in the law.

I hope this review was helpful! Thanks for watching, and happy studying!

• “Questions and Answers to Clarify and Provide a Common Interpretation of the Uniform Guidelines on Employee Selection Procedures | U.S. Equal Employment Opportunity Commission.” n.d.
• “Accommodations | U.S. Department of Labor.” n.d.
• “Executive Order 11246 | U.S. Department of Labor.” n.d.