LSJ Opinion

Diversity and inclusion education can serve as ‘business insurance’

Human resources employees at AMC Entertainment Inc. participated in a diversity workshop in this 2006 file photo. Smart companies are proactive about diversity and inclusion training.
Human resources employees at AMC Entertainment Inc. participated in a diversity workshop in this 2006 file photo. Smart companies are proactive about diversity and inclusion training. File photo

Organizations, large and small, increasingly understand that diversity and inclusion education are good in and of themselves, but they also are good legal protection about perceptions of differences in gender, race, age, sexual orientation and many other cultural considerations.

Recent sexual harassment accusations that started in Hollywood, spread like wildfire through numerous other organizations across the country, even reaching politicians at the highest levels. The U.S. Congress, confronted with its own troubling history of sexual harassment, voted Nov. 29, 2017, on legislation requiring all of its 535 members and their staff to undergo mandatory anti-sexual harassment training.

Critics suggest that Congress’ vote came a little too late given that in June 1999 the U.S. Supreme Court Supreme Court decided that “preventive training can be part of a legal defense against punitive damages in diversity cases such as discrimination and harassment.”

In short, if an employer does not provide cultural training to its employees, it should expect them to make cultural mistakes and will carry the burden of liability.

John Sikorski — a partner and the head of the employment law practice at Robinson, Donovan, Madden & Barry P.C. in Springfield, Massachusetts — said that with a trio of 1999 decisions (Faragher, Ellerth and Kolstad vs. the American Dental Association) the high court was “sending an extremely strong signal to corporations that having effective policies, procedures and training programs should count very heavily in deciding both the liability and damages phases of employee discrimination suits.”

Other attorneys, including as Dona Kahn of the law firm Anderson Kill P.C. in New York, warn employers against relying on the mere existence of a diversity training program to shield them from liability for improper cultural practices: “To the extent that you have good policies and procedures in place so that people have a safety valve to have small disputes resolved before they escalate into litigation, these procedures help reduce your exposure in court but don’t insulate you from lawsuits.”

Let’s make it very clear here. Developing diversity and inclusion procedures in an organization and providing training must be a proactive process that almost everyone in the organization embraces.

Nevertheless, the process becomes ineffective when it is designed as a reactive mechanism to a series of already filed lawsuits. Participating employees, including the vast majority of innocent ones, look at it as a punishment for other people’s faults.

As a result, the resistance to diversity and inclusion is immense leading to greater challenge in implementing the inclusion component of the initiative.

It remains important to remind ourselves that diversity and inclusion education in an organization is not designed only to avoid lawsuits. Not at all.

A lot of diversity programs from decades past were initiated as “the right thing to do,” but more organizations are now realizing it also is “the smart thing to do” — an imperative business move that is essential for the company bottom line

Emmanuel Ngomsi, Ph.D., is the president of All World Languages and Cultures Inc. He educates and coaches on issues of cultures and diversity. To reach him, call 888-646-5656 or sevend email to info@universalhighways.com.

  Comments