Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome Joseline Jean-Louis Hardrick back to our pages. Click here if you’d like to donate to MothersEsquire.

I think it’s time we move beyond the business case for diversity and start to see diversity, equity, and inclusion (DEI) efforts as basic human decency. I’ve worked in the corporate setting for years, first in financial services, then at a law firm. I am also a small-business owner myself. I have participated in hiring processes with different organizations and know that most businesses operate fundamentally to increase revenue and make a profit. So I understand the point of the “business case” for diversity. It is an attempt to speak to the primary interest of business owners. By making a business case, diversity advocates have tried to convince business owners, particularly large corporations and organizations, that it is more profitable to have diverse thoughts and experiences in the workplace, which can correlate to hiring people who bring ethnic and racial diversity. But it is time to take a different approach.

What Is The Business Case For Diversity? 

Generally, it describes rhetoric that justifies diversity in the workplace because it benefits a company’s bottom line. Some have argued that advocating for a business case can have the opposite effect intended. Those critics argue that it creates a sense in prospective employees that the business is willing only to make the right statement but not take the right actions required to obtain true diversity. Others think the statistics supporting the “business case” are somewhat misleading and untrustworthy because they are oversimplified. Nonetheless, for decades, DEI professionals have generally used the business case as the primary selling point of diversity in the workplace.

Has It Worked?

I first heard about the business case when I started working professionally in 1998 when I obtained my first job in corporate America. I received a college scholarship with a four-year internship at a major bank in New York City. The scholarship program was part of its philanthropy efforts, and I was one of several students selected. I was excited to be in the business world. The program was designed like a typical leadership-training program; other students and I rotated through different departments in the corporation to get a feel for its business sectors. The program also touted itself as advocating diversity, reflected in the various backgrounds of the accepted students.

My first rotation was through the corporate diversity department. I watched very dedicated, smart, and hardworking individuals constantly try to find new ways to advocate for diversity in training and hiring. I liken their efforts to sitting in a rocking chair; lots of activity but little progress. They did the best they could with what they had. More than 15 years later, much of the same arguments about the benefits of diversity are still being debated. Even worse, the progress made is slowly being undone by some politicians who are waging a cultural war.

Attack On Diversity Training 

Recent legislation is giving many employers pause in their diversity efforts. Florida, the first state to pass a law specifically targeting corporations for their diversity programs,  has created a chilling effect on these efforts. The Stop WOKE Act prohibits workplace training that teaches that individuals are “inherently racist, sexist, or oppressive, whether consciously or unconsciously;” prohibits discussion of “privilege” or “oppression” because of race, gender, or national origin; or that any person “bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress” for acts committed in the past by members of the same race, gender, or national origin. The law labels these types of training as discrimination. Other states are following suit.

This law, and those like it, closely mirror former President Donald Trump’s now-rescinded Executive Order 13950, which labeled these teachings as “divisive concepts.” These concepts, which Trump banned from federal training, included the idea that the United States is inherently racist or that any individual should feel “discomfort, guilt, anguish, or any other form of psychological distress” based on their race. Critics argue that these laws and policies impinge on employers’ free speech rights. Several corporations sent a letter to the Florida legislature about the law and the difficulty it presents for them in meeting their legal and ethical obligations.

A recent case challenged the Stop WOKE Act’s constitutionality arguing that it is so vague that an employer cannot know when it is violated. The federal judge, in that case, has blocked enforcement of the act against private employers because it violates private companies’ First Amendment rights to freedom of speech and expression. Florida will likely appeal the ruling, so the act can still have serious consequences for employers.

A fair share of law firms have weighed in on the law’s impact on employers and their training; some offering recommended first steps to avoid violating the statute. Many lawyers suggest making the training optional, adding a disclaimer that the employer does not “endorse’” any view in training, or pausing training altogether. Ultimately, the law’s vagueness creates a chilling effect on diversity training, Employee Resource Groups, and other DEI efforts in the workplace.

This article does not offer legal advice, but there are some steps employers should take to continue to foster a DEI environment in the wake of these laws.

The Fairness Case For Diversity

What about a moral obligation to create an environment where the human beings producing the work product for the employer feel welcomed as their complete selves? Idealistic? Yes, but also realistic. A full-time job, constituting at least 40 hours a week, not including commute time, requires adults to spend most of their waking hours at work. Shouldn’t it be a bare minimum that those hours be spent in an environment free of racism, prejudice, explicit bias, and other barriers to success? Some experts have proposed a “fairness case” for diversity, defined as  “rhetoric that justifies diversity on moral grounds of fairness and equal opportunity.” The fairness case will appeal more to workers who have become skeptical of corporate slogans and promises because it does not require profitability as a justification for diversity.

What Can Businesses Do?

Although a business may choose to pause its diversity training or disclaim any endorsement of the ideas or theories discussed in training, it can still prioritize diversity in its hiring, training, promotion, and other practices.