In this first episode, host Emily M. Dickens is joined by EEOC Commissioner Andrea Lucas to discuss the EEOC's recently announced Hiring Initiative to Reimagine Equity (HIRE), a joint initiative with the Department of Labor’s Office of Federal Contract Compliance Programs focused on identifying best practices for recruiting and hiring, as well as share advice for HR professionals who want to reach a more diverse applicant pool and strengthen diversity, equity and inclusion efforts.
SHRM’s new HR Policy Podcast features conversations with government officials and experts on the public policy issues that impact HR professionals.
In this first episode, host Emily M. Dickens is joined by EEOC Commissioner Andrea Lucas to discuss the EEOC's recently announced Hiring Initiative to Reimagine Equity (HIRE), a joint initiative with the Department of Labor’s Office of Federal Contract Compliance Programs focused on identifying best practices for recruiting and hiring, as well as share advice for HR professionals who want to reach a more diverse applicant pool and strengthen diversity, equity and inclusion efforts.
This episode of the HR Policy Podcast also previews SHRM’s Workplace Policy Conference (March 27-29 | Washington, DC), which includes a panel with Commissioner Lucas and EEOC Vice Chair Jocelyn Samuels.
Emily:
Welcome to the SHRM HR Policy Podcast. I'm your host, Emily M. Dickens, Chief of Staff, Head of Government Affairs and Corporate Secretary. I'm so proud that my first HR policy podcast is going to be with EEOC commissioner, Andrea Lucas. She and the equal employment opportunity commission help employers build and promote more equitable workplaces for all. As HR professionals, to play a key role in delivering on the promise of an equitable and inclusive workplace. We're always grateful for the opportunity to engage with EEOC leadership. The timing of today's conversation is ideal, because commissioner Lucas is going to join us again later in March, along with EEOC vice chair, Jocelyn Samuels to speak and show at the workplace policy conference happening on the 27th and 29th here in Washington, DC. WPC 2022 is an extraordinary opportunity for HR professionals and executives to hear the latest workplace policy updates from decision makers, including the Secretary of Labor, leaders from the EEOC, the National Labor Relations Board, The National Council on Disability, Citizenship, and Immigration services, and more.
Emily:
Please join us in Washington, March 27th to 29th for this event, this will be a time to cause the effect on the workplace policies you want to see and connect with administration officials, members of Congress and leading policy experts. To register, visit conferences.sherm.org. Now back to today's program. I'm looking forward to this conversation because it's going to focus on something that has been a discussion for months, and really for years. Anti-discrimination efforts in the workplace. For our listeners, commissioner Lucas was confirmed by the Senate in 2020 for a five-year term. Prior to her appointment to the EEOC, she was a member of the Labor and Employment and Litigation Groups of Gibson Dunn & Crutcher, LLP. She has extensive experience counseling employers. She's also focused extensively on providing COVID-19 related counseling to employers to protect their employee's rights.
Emily:
Commissioner Lucas is particularly interested in outreach, compliance, and enforcement initiatives related to protect the characteristics that may require employers to grant reasonable accommodations, especially, for disability, pregnancy related disability and religious grounds. She's the mother of two young daughters and is only the second EEOC commissioner to give birth during her tenure on the commission. Commissioner Lucas, thank you so much for your time today. The EEOC is fortunate to have your leadership. And I'm excited to once again, sit down and have a conversation with you about your work and the priorities for the year ahead.
Andrea Lucas:
Thank you, Emily. It's such a delight to be here and to be speaking with you and to communicate with SHRM's members.
Emily:
Thank you. So here's the first question, I'm going to jump right in. Can you tell me about the HIRE initiative that was launched in January and what agencies are involved and what the focus of that initiative is?
Andrea Lucas:
Absolutely. The HIRE initiative stands for a hiring initiative to reimagine equity. And it's a joint initiative of the EEOC and the OFCCP, which is a division of the Department of Labor, which focuses on federal contractors as many of your listeners likely know. So it's a multi-year collaborative effort to expand access to good jobs for all workers, including those from underrepresented communities, and to help address key hiring and recruiting challenges. And our sense is that there's a lot of mutual interest from both employee and management side stakeholders, as well as other relevant stakeholders in exploring, discussing, and receiving guidance on voluntary diversity initiatives. So HIRE is going to do a variety of things over the multi-year process. We anticipate that it will host a series of round tables, meetings, and public forums to hear from a wide array of stakeholders to examine organizational policy and practices around hiring.
Andrea Lucas:
It's going to seek to identify strategies, to remove unnecessary barriers to hiring and promote effective job related hiring and recruitment practices to cultivate a diverse pool of qualified workers with a goal of identifying practical, actionable strategies that can make meaningful progress while also complying with equal employment opportunity laws. And it'll also examine the use of tech based hiring systems and propose compliance with an application of longstanding anti-discrimination laws and these more novel employment related technologies and practices. And finally, we'll hopefully develop resources, that'll promote adoption of innovative and evidence based recruiting and hiring practices that advance equal opportunity for all. Most recently, it was launched around Martin Luther King Day. The first round table in the series was titled building on Dr. King's legacy, launch of HIRE, a hiring initiative through imagined equity. And given the timing, the first session was particularly focused on workers for racial and ethnic minorities.
Andrea Lucas:
We had some great participation from a wide array of stakeholders, including those on plaintiff's side and civil rights organizations, union and worker rights organizations, but also employer management side organizations, industrial psychologists. So it was a really fullsome participation and was focused on exploring how to promote recruitment and hiring practices that advance equal employment opportunity for workers from racial and ethnic minorities. Yeah, so it was extensive. We're still in the planning process for future round tables. And we'd love to hear from stakeholders on others, but I have some ideas for future round tables that I'd love to see. Workers with disabilities, for example, older workers, female workers, caregiver employees. And I think it'd be really interesting also to have a round table, specifically, on socioeconomic and educational diversity, so that we capture workers from lower social economic backgrounds. First generation college, first generation professional, workers with college degrees. So I'm hoping that would also be a separate round table.
Emily:
Wow. So if you're a listener, usually when I have these great conversations, whether over a podcast or in person, they always give you a little homework. And I think you have your first assignment from commissioner Lucas. If there is a round table, what do you think EEOC should be considering? Please let us know, by sending your notes to us, and let us know this is something with interest.
Andrea Lucas:
And I'd also encourage, we'd love to hear from you all directly. We have specific email addresses that you can send in resources, research ideas, or requests for round tables, or other input. And those are hire-initiative@eeoc.gov and hire-initiative@dol.gov. So we'd really welcome people sending in information to those as well. And you're also welcome to contact my office or the offices of any of my fellow commissioners to set up a call or meeting, to share feedback. We really are always open to that as well.
Emily:
This current group of commissioners, I just have to say, you all are so accessible. I was just thinking about the last time you visited our headquarters in Alexandria. And we just had this really great conversation about would ultimately be today's discussion, but we talk about so much and I just want to send to those listening that they mean it, all five of them. Truly accessible. It's why some of them flew out to our conference in Vegas. That's why some of them are going to be joining us in DC for our event, so I really appreciate that. And so you have ideas, this isn't just an ask, just to be asking. They really do want to hear from you. So I just want to make sure and people know the necessity behind that. So I'll go on and talk about the diversity equity and inclusion.
Emily:
It sounds so straightforward and doable, so much discussion about it now and over the last few years, especially. But what are the legal considerations and risks surrounding voluntary diversity initiatives that employers need to be aware of and which SHRM, in 2020, decided to launch our Together Forward @Work initiative, which focused on the experience of black people in the workplace. And we heard from so many people about initiatives that they were starting, that have ultimately led to new products and new opportunities for growth. So there's so much Goodwill and good intention, but we want to make sure people, as you've said to me before, we want to make sure that we're making sure that we understand the risks around these voluntary diversity initiatives. And make sure that you are aware of them so that whatever you're doing, you go to run a file with anything that's of the law.
Andrea Lucas:
I think you're right, Emily, there is so much interest and a lot of well-meaning intent in implementing voluntary diversity initiatives, and being really creative here. And they can be really valuable, but it's so important that they have a legal lens on them to make sure that you're actually doing something that's both effective and compliant with our equal opportunity laws. Just to sort of like a preface or undoubtedly in the middle of a national conversation about civil rights. And those issues are really important and can't being ignored. And there's also, obviously, a significant impact that the pandemic has had on many workers and businesses, particularly those that are most vulnerable. But in the rush to write injustices, we need to refuse to accept that the solution is to engage in more discriminatory policies and practices, because those policies aren't going to actually help anything. They're going to further damage our policies.
Andrea Lucas:
So the EEOC's mission, and I think this is what employers should share, too, is to advance equal opportunity in the workplace, not put our finger on the scale to force equitable outcomes. And so it's important not to jump straight to quick fixes, which sometimes can come in the form of a quota, or there's been a lot of discussion about, if there's a right kind of discrimination, so-called Anti-racist Discrimination and sort of is a very foundational point. Quotas based on race, sex, or other protected characteristics are still illegal in almost every context. Now, federal contractors may have some affirmative action requirements, but for most people that isn't actually the state of the law. No matter the grave impacts of the pandemic is raw, no matter historic injustices. You can't apply that as sort of a blanket rule. And I think that's a common misunderstanding that a lot of people have when they're going into structuring a DEI program.
Andrea Lucas:
So I think first, what are the proper goals that a DEI program should be? They shouldn't be window dressing, and they shouldn't be virtue signalling. They should be to have robust, equal opportunity. And the second goal should be to have a healthy, thriving work environment. So any DEI initiative has to drive towards those goals. And then, second, it's important to address a few big picture misunderstandings about legal obligations and risks. I preview to some of them in my sort of initial preface. First, title seven mandates equal opportunity, not diversity, not equity. And then second, the proper definition of discrimination, again, in the conversation about many of the issues we're having, there's been some push for different definitions of racism. Some of them might include racism equals prejudice, combined with social and institutional power. If you adopt that, then you're going to conclude that discrimination can only occur against certain historically underrepresented or oppressed groups.
Andrea Lucas:
And can't be promulgated by those groups. And hence you might get a reference to quote unquote reverse discrimination, but title seven, the plain textile law protects against discrimination on the basis of any protected characteristic, regardless of the respective races or genders of the complainant or the accused bad actor. So you've got to make sure you have the right definition of discrimination. And that's important because the EUC has a long record of bringing race discrimination cases, regardless of the race of the charging party or the bad actor. That's going to include situations where you have discrimination, where both the charging party and the bad actor are ethnic minorities. It might include things that someone might characterize as reverse discrimination. So making sure that you're watching for that will allow you to make sure that you're prohibiting discrimination on any protective basis in your diversity initiatives, not running a fall by having to narrow a lens on that.
Emily:
So we have a number of practitioners who are listening to this. And so, if you've got a practitioner who wants to develop and reach a more diverse applicant, what's the most, or number one piece of advice that give that as they're beginning to embark that effort?
Andrea Lucas:
Yeah. I would say that efforts to expand your applicant pool are generally some of the safest, voluntary diversity initiatives that you can do, in terms of likelihood of running a follow of legal risk. That's all about equal opportunity, broadening your candidate pool, as long as your end goal is you want to broaden your candidate pool, because you want everyone to truly have robust, equal opportunity. And to not just be picking and choosing, having a really parochial or old boys club about who you've normally gone for. Then the goal isn't to put your thumb on the scale for any particular person, but it's to even the playing field, have a really broad pool. So that can include making sure that you're not ignoring untapped talent, like you said. Don't put in barriers that actually aren't tied to the work that you're looking for. So for example, and this came up in the first HIRE round table.
Andrea Lucas:
If you've got a college degree requirement, that might not actually be tied to what you really need for your job. It's certainly going to be in some positions, but in others, it isn't. And as soon as you put in that unnecessary barrier, you might be really narrowing your candidate pool. And it's going to often have disproportionate impact on certain groups, including sometimes ethnic minorities, but it has nothing to do with the job that you're doing. And by removing it, you're suddenly going to widen your candidate pool. The same thing could be true for not having a policy of saying that anyone who has a six-month gap or longer in the resume, or has a period of part-time work is automatically going to be screened out by your software, or just in terms of when you're looking at candidates, if you remove that kind of requirements, then you're going to automatically expand your candidate pool.
Andrea Lucas:
You're going to pull in more people who maybe they were laid off during the pandemic, maybe they're caregivers, whether they're women, or other caregivers who have taken a period of leave. Employees with disabilities, who may have gone on part-time work, lost their work during the pandemic, or just had periods of time off. So it's a hiring practice. It's also a voluntary diversity initiative to some degree, but it's also just actually straightforward compliance with the laws. If you've had an unnecessary barrier in the requirements you have for advertising for a job, you're arguably breaking the law, not going forward and going above and beyond what we might need to do. You're just not hitting the bare minimum. Job requirements have to be tailored to the job you actually have.
Emily:
Absolutely. And there's so many people wanting to do the right thing. You just got to pay attention to what you're doing and making sure that you're not putting up these unnecessary barriers. We hear our CEO talks so much about being considerate when you put in that requirement for a college degree, is that necessary? And then even, you're right, people who been out of the workforce for some period of time, raising children, caring for a loved one, not using that as a barrier for them in the hire process as well.
Andrea Lucas:
Well, sort of relatedly, in terms of a big picture of how to ensure that you're likely to structure your DA program to minimize legal risk. There's sort of a big picture structure issue, regardless of any particular item or initiative that you do. Don't outsource your DEI exclusively to external groups, contractors, or organizations. And even if you have an in-house diversity division or personnel, make sure they're really well integrated and work in tandem with in-house council and HR functions, because diversity shouldn't just be isolated and segmented. It shouldn't operate in a vacuum or without oversight, especially, legal oversight, because there's risks in two directions if you do that. One, your diversity initiative might be totally ineffective. It might lack leadership support and buy-in, and it might not have sustained implementation.
Andrea Lucas:
And on the other hand, you also have the risk that it not only may not result in positive change, you actually might make things worse, and you could result in legal liability. So you really need to have an integrated diversity effort. You need HR oversight, you need legal oversight. It shouldn't just be sort of a standalone, non-reviewed segment of your workforce. And in general, I would recommend that the company's attorneys review any and all diversity initiatives, trainings, and programmings. That's just really important. You're more likely to have both effective and legally compliant diversity initiatives, if you do that.
Emily:
Wow, commissioner, that was such a gem, because I know HR professionals are clapping in their seats right now, and others who understand the importance of DEI work and that they shouldn't do it alone, that it is a joint effort internally in the organization. And that's what it works best when so many people, including the leader of that organization, are engaged in these efforts. To me, that's just the jewel. And I hope that others see the value in that particular way to manage their DEI. I will say for our small business owners, we have many. As you know, the majority of businesses in this country are small and medium size. For our very small enterprises, any special recommendations for them, because they may not have in-house legal. They may not even have a particular person who's assigned to DEI, any advice for them?
Andrea Lucas:
That's a great point. I would say that if you are doing a particularly novel diversity initiative, it could be important to consult with an outside lawyer. If you don't have an in inside dedicated lawyer for your company. And I recognize that's going to be an expense, but you want to make sure that... Again, diversity programming is accorded the appropriate weight, right? That it can both do good or harm, and you want to make sure it's actually effective and legally compliant. There might be value in retaining an attorney to review that. I'd also suggest that we have a great small business resource on our website about all of the laws that we implement. It's a whole small business center, so you can check out the UCS website for those kinds of resources and guidance. And my final sort of suggestion is take some serious pause before you jump too fast to just circulating links to third party sources.
Andrea Lucas:
And that's something that's true for both small businesses and large businesses. Small businesses might be doing it, because they think that it could kind of cut costs. And they don't actually review necessarily all of the aggregated links. Big businesses might think that it's not as important, or this is a way to have volume of diversity related signaling. But in each case, whether you're a small or large business, regardless of why you're doing that, keep in mind that anything you circulate can be imputed to you to some degree. It can have impacts on the work environment. It can be deemed that you've condoned it. So just because it's a link in an email, just because it's on LinkedIn Learning, for example, something outside of you. If you've provided direct access to it, you could end up incurring either legal or reputational risk because of that.
Emily:
Wow. So the thing with these podcasts, they're much shorter than the time I usually have to talk with my guest. And so, first of all, I want to say, thank you again, commissioner, this has been a great discussion, but there's so much more we can talk about. So what I'll say is we'll continue. Just as the EEOC has resources. SHERM works very hard to make sure we have resources for all styles of entity that could help you in your work, on making a more diverse workforce, and making sure that you have an equitable workplace as well. So I encourage you to do that. But I also want you to know, as we continue to update information on our Together Forward @Work site, that I am hoping to convince the commissioner to do a blog or an article that we can add on this particular issue, because there are just tons of jewels that she talked about today that I think really can help you stay on the right side of the law and do the right thing. And that's what we want everyone to do. So any last words, commissioner?
Andrea Lucas:
Well, I'd love to do that. And there's so much more to be said on this topic. I would just say that I do think that having really integrated HR business, legal, and diversity is the best way to ensure that you have legally compliant efforts, because we want there to be true inclusion. And inclusions are only inclusions if you're including everyone. So you want to make sure that everything you do really packs a punch in the right direction. And the EEOC is here to help on that.
Emily:
Well, you heard it. Inclusion is only inclusion if you're including everyone. Thank you so much, commissioner Lucas. It's been a pleasure to hear you today and speak with you, and look for more from commissioner Lucas on this important topic. Thank you.