Mitigating Risk of Social Responsibility Initiatives 

By: Keli Wilson and Jon Geier

This is the final part of our blog series, Psychological Safety and Advancing Workforce Equity.

Throughout this series, DCI has shared many benefits to workplace equity gained by sustaining or improving a candidate’s or employee’s psychological safety (i.e., trust, integrity, and respect).¹ Recently published research suggested that transparency in information disclosures from organizations influence efficiency, effectiveness, and trust (Albu et al., 2019). Given this, we will now delve into the psychological safety considerations when encountering transparency of organizational commitments and accomplishments in social responsibility components, or diversity, equity, inclusion, and accessibility (DEIA), as well as the perceived risk that may arise and how to mitigate it. 

Before exploring the proactive and public-facing displays of commitment and strategies for mitigating potential legal exposure, let’s first refresh on the legal framework in place to protect individuals from discriminatory employment practices. According to Title VII of the Civil Rights Act of 1964 (Title VII) and Executive Order 11246², job applicants and employees are protected from employment discrimination based on race, color, religion, sex, and national origin.³ It is illegal to develop quotas, apply set-aside opportunities, or engage in preferential treatment of a protected group.  

The use of DEIA related metrics, such as workforce representation and personnel transactions (e.g., hires, promotions, attrition), in a public manner can create potential legal exposure. Essentially, such metrics provide insights, not previously available, to those directly connected to the organization (e.g., potential future candidates, non-selected candidates, employees). Additionally, other stakeholders invested in monitoring progress of organizational commitments will also be privy to this information (e.g., shareholders, employees, advocacy groups, reporters).  

This may lead to a situation in which organizations may strengthen their reputation, but also may be publicly criticized for perceived shortcomings in comparison to peer comparators, lack of progress, or even lack of public disclosure. It could also create a situation, coined reverse discrimination, in which a historically advantaged group (i.e., those who identify as White and/or Male persons) is cognizant of these increased efforts and, coupled with personal employment experience, alleges discrimination based on race or sex. 

There are reports that the incidence of alleged claims of reverse discrimination are on the rise⁴, and many prominent employers⁵ have experienced them. Although the legal standard to find reverse discrimination will vary by the Court of Appeals Circuit, the Seventh Circuit, for example, requires evidence of “background circumstances” supporting a race-discrimination claim brought by a White plaintiff. The Court held that there are four prongs that a plaintiff must demonstrate to establish a prima facie case.⁶ Notably, the Court explained that the first prong may be satisfied by, among other things, showing that the employer was under pressure from affirmative action plans, customers, public opinion, the EEOC, a judicial decree or corporate superiors that demonstrate a commitment and belief in diversity.⁷ Using that as the standard it is easy to understand how an employer’s disclosure of DEIA related metrics can be used to allege that its employment decision-making is flawed by reverse discrimination. 

There are two Supreme Court cases that provide the standard for determining whether a voluntary affirmative action plan is valid under Title VII.⁸ The plan must be designed to remedy a “manifest imbalance” in a “traditionally segregated job category”, and not “unnecessarily trammel” the rights of nonminority employees, nor serve as an “absolute bar” to their advancement. Employers who leverage analytics to inform DEIA opportunities must balance the risks of legal exposure with the benefits of social responsibility disclosures when providing information to the public.  

Examples of what employers can do to highlight their commitment, while mitigating legal risk, is to adopt some of the following practices. 

• Comply with federal, state, and local regulations and statutes, such as Title VII, EEOC Guidance, OFCCP Compliance (e.g., Executive Order 11246).  
• Consult with an attorney to direct the strategies and supporting analytics under confidential and privileged attorney-client work product. 
• Consult with an attorney to determine whether a voluntary affirmative action plan is valid under Title VII. 
• Engage in the review and use of selection tests that are deemed valid and job-related.⁹
• Avoid race- or gender-consciousness when making employment decisions.
• Uphold a merit-based selection process.
• Leverage quantitative (e.g., employment outcomes) and qualitative (e.g., employee experiences) analyses within a social science framework (e.g., labor economics, social and industrial and organizational psychology) to inform DEIA opportunities.  
• Set aspirational goals for underrepresented group(s), as identified when comparing the demographic representation of the workforce to the demographic representation of the available labor force.
• Offer DEIA initiatives, such as policies, resources, and training materials. 
• Supplement a disclosed EEO-1 Type 2 Consolidated Report with the organization’s DEIA story (e.g., narrative commitments, action, and progress, additional meaningful cuts of the workforce representation). 
• Engage in narrative commitments of effort-based improvements (e.g., employee resource groups, leadership development programs, mentoring opportunities), monitor progress, and create accountability. 
• Maintain knowledge of evolving evidence-based practices to enhance DEIA found in social and industrial and organizational psychology academic journals.
• Monitor levels of psychological safety of candidates and employees of the organization throughout all cycles of the employment process.  

Research has found a positive relationship between followers’ psychological safety and leaders who are perceived to be transparent (Vogelgesang, 2007). Given this, although DEIA can be seen as a competitive advantage to organizations and kept as private intel, it may be more beneficial to strategically disclose some amount of information when it comes to organizational commitments to social responsibility. 

Psychological safety is just one of many constructs to monitor that can impact workplace equity. DCI stays abreast of academic literature findings to inform best practice considerations and recommendations as programmatic improvements or strategies to enhance and sustain improvements to DEIA.  

This concludes our series on psychological safety in advancing workplace equity. Please follow DCI on LinkedIn to receive related DEIA articles in the future. Also, if you missed it a previous social media release on workforce demographics within and across sectors, check it out here: Diversity at a Glance. 

References

Albu, O. B., & Flyverbom, M. (2019). Organizational transparency: Conceptualizations, conditions, and consequences. Business & Society, 58(2), 268-297.

Page, L., Boysen, S., & Arya, T. (2019). Creating a Culture that Thrives: Fostering Respect, Trust, and Psychological Safety in the Workplace. Organization Development Review, 51(1), 28-35. 

Vogelgesang, G. R. (2007). How leader interactional transparency can impact follower psychological safety and role engagement [Unpublished doctoral dissertation]. University of Nebraska.