The Civil Rights Act of 1964 was passed almost 60 years ago, but businesses large and small still struggle with affirmative action compliance and training for compliance professionals. Why? Because equal employment opportunity and affirmative action compliance are surrounded by misinformation and misunderstanding. The law benefits and protects everyone, but affirmative action myths have undermined its goals and hurt its application.
Many people think affirmative action is not “for” them or that it harms them in some way. They might mistakenly assume that affirmative action involves taking something from a certain group and giving it to another, but it actually has the opposite purpose; affirmative action prevents affirmative action compliance failures and helps companies avoid corrective affirmative action efforts, such as quotas.
In fact, most compliance professionals don’t understand the goals of diversity training and think it’s their job to “move the needle.” That is far from the truth. Compliance practitioners actually need to create an environment in which the needle can move naturally without any intervention (and independent of anyone’s individual determination of where “the needle” should be).
It’s imperative that businesses of all sizes have a better understanding of compliance. Let’s start by looking at the current state of diversity and inclusion efforts to see how that informs the understanding we must build.
Lessons From the Rescinded Trump Order
During his first few hours in the office, President Joe Biden rescinded former President Donald Trump’s executive order, E.O. 13950, which prohibited federal contractors from implementing programs that “promote race- or sex-stereotyping or scapegoating.” The purpose of the executive order was clear, and it gave the federal government the power to regulate diversity training in a major overreach. More than 160 businesses and nonprofits called upon Trump to reconsider the action.
Still, many companies supported the executive order, and many Americans still resist the idea of equality. They don’t see the benefits of diversity and inclusion training because they fear these initiatives will hurt them or diminish their success. On the other hand, progressives sometimes place anyone who disagrees with their views as someone who cannot be saved.
Skeptics of inclusion training and compliance efforts inadvertently demonstrate how harmful the lack of compliance support can be. These are the people compliance officers must work with rather than alienate. People feel so viscerally that nondiscrimination laws hurt them, so you’ll want to resist the urge to say, “Get on board or get left behind.”
Compliance professionals must introduce the right level of compliance training and have the hard conversations everyone else avoids if any real progress is ever to occur. They must listen and actively dismantle misconceptions that perpetuate inequality in the workplace.
Here are a few effective ways to regroup and move forward after the rescinded order:
1. Audit your compliance training programs and make revisions.
Before your company resumes diversity and inclusion training programs, take a hard look at every aspect of your training. Are the materials and diversity and inclusion messages exclusive or inclusive? Are they phrased in a way that will invite or alienate? Are you prepared to answer hard questions? All of these elements must be evaluated before rolling your training out.
2. Listen to the other side.
Do not assign an acceptance of inequality to one side of the political spectrum. Doing so only fosters animosity and undermines any progress your company could make in affirmative action compliance. Instead, have open conversations with people who are afraid of the goals of diversity training or who lack an understanding of compliance and what it could mean for the company. Remain compassionate and remember that everyone is human.
3. Incorporate outreach statements (and mean them).
If your company is reintroducing diversity training programs and other initiatives, take an open-door approach. This means making time to answer questions and having meaningful conversations with all employees — especially those who do not understand the goals of diversity training. The importance of communication is second to none because a lack of communication can wreck the entire effort. If you say your door is always open, make sure this applies to everyone in the program while actively inviting people to walk in.
Connecting With Decision Makers
Effective affirmative action policies start at the top and work their way down. Compliance professionals implement affirmative action compliance programs, teach their employees, and lead by example — earning executive buy-in as the benefits become apparent. When the CEO of a company helps show employees how affirmative action policies benefit them as a whole, affirmative action programs become far more effective than if leaders are inconsistent in their actions or messages.
Unfortunately, hiring managers often view compliance requirements as frustrating “hoops” they have to jump through to “check a box.” This approach automatically creates animosity toward the idea of compliance support and results from poor compliance implementation or a lack of understanding of compliance altogether. Leaders often struggle to see how the requirements of affirmative action are actually designed to achieve the true objective of the program: equality.
Because executives decide what resources the compliance team will have, how they are used, and how to measure compliance effectiveness, it’s key to avoid superficial compliance efforts that feel forced. The solution is working to correct misconceptions of what compliance is about. Use the following tips for guidance on how to ensure that happens:
1. Own your expertise.
As a compliance professional, you understand the importance of affirmative action and compliance training programs. Stay confident on this road to equality. No one in your organization knows more about nondiscrimination and affirmative action than you do, so remain steadfast in your authority and know you have the power to show others in leadership and across the company why affirmative action matters.
2. Use positive reinforcement to encourage compliance.
Sometimes, top executives need a little reinforcement and reassurance. For example, when your vice president says something incorrect about nondiscrimination law or affirmative action, say, “Yes, exactly, Bob! Thank you for bringing that up. Bob has just brought up one of the very attitudes I need your help correcting.” Use consistent messaging from the top down, making corrections seem like the executives’ own ideas.
3. Frame affirmative action plans in business terms.
Some executives might be somewhat new to affirmative action efforts, so you’ll want to communicate how affirmative action compliance furthers business goals. It’s easy to argue that a discrimination lawsuit against the company hurts the bottom line, but “leaving talent on the table” should be your main concern.
Affirmative action ensures that people are hired based on skills and experience. If you close the door on groups of people based on sex or race, then you are absolutely missing out on top talent. Compliance helps companies find the very best in the market while helping to build a better and more equal world.
Training for Compliance
Hiring managers and supervisors do not need to go to law school to understand and implement compliance requirements, but they do need a deeper understanding of compliance law in terms of text and application. They don’t need to know every word of a complex definition under a specific statute. Instead, they should be able to spot issues and know when to involve legal experts. Bogging them down with technicalities is counterproductive because it shifts focus away from the goal.
This highlights the need for a practical, real-world vocabulary for affirmative action compliance. Formalities and poor communication prevent people from actually understanding the concepts. All of the legalese around affirmative action plans makes it seem like underhanded doublespeak — for instance, renaming “quotas” as “goals.” It’s time to cut through the jargon to improve compliance performance and invite more people into the space. Practitioners should communicate about compliance benchmarks in a way that makes them feasible for compliance professionals to integrate and understand.
The foundation of affirmative action compliance work is Title VII of the Civil Rights Act, which is based on the idea that everything naturally takes care of itself if we remove discrimination from the employment process. The progress is slow, but the idea is that diversity becomes a more natural state as people get used to working with colleagues who don’t look like them, think like them, or act like them. And with a culture of natural diversity, companies can reach talent in places that were previously overlooked.
Remember, though, that even strong foundations require maintenance. Here are two processes compliance professionals can use to build and maintain a solid affirmative action foundation:
1. Focus on the general mission of your affirmative action plan.
Step back from the text of the law and regulations to instead focus on the general purpose of affirmative action plans. This requires your organization to be self-critical. If you think something looks or feels “off” or wrong, take a closer look. Checking off the technical compliance boxes will not help your organization if you are still ignoring key problems.
2. Remember the human element of affirmative action compliance.
Everyone is naturally more comfortable with things that are familiar and less comfortable with unfamiliar concepts. It is a deeply ingrained survival instinct that we all share. To implement effective affirmative action programs, we have to counter that instinct with awareness, which means course-correcting as necessary and opening minds to think differently about the unfamiliar moving forward.
While many employers have made significant progress in affirmative action compliance since the Civil Rights Act, events from the past year make it clear that employers and compliance professionals still have a long way to go regarding program implementation. Effective compliance requires a deep understanding of your organization and a multifaceted approach to addressing inequality.
The Role of Affirmative Action in Recruitment
Most affirmative action compliance efforts revolve around recruiting strategies because recruiting is a huge driver of bringing more diversity into the workplace and ensuring fair hiring practices. Recent movements, such as Black Lives Matter and #MeToo have paved the way for recruiting efforts to focus more on diversity and inclusion. For example, the tech industry has experienced a serious DEI shakeup recently, which has resulted in greater cultural competency and understanding in the workplace.
Recruiters are often trained first in understanding compliance and are then responsible for following affirmative action plans and documenting their efforts. If a recruiter holds certain misconceptions about affirmative action, it can create major problems and seriously undermine affirmative action as a solution.
As such, compliance team responsibilities should include supporting recruitment efforts and recruitment professionals. When this becomes a priority, the needle moves. Here are the best ways to use your HR compliance resources to help recruiters further your work to achieve affirmative action compliance:
1. Explain that compliance minimizes recruiting process interference.
To start, look at your reporting structure. Recruiters typically do not report to compliance, so the first step is securing buy-in from recruiting leadership. The best way to do this is by explaining how compliance helps the recruiting process by minimizing interference. The federal government has the authority to dictate how recruiters do their jobs in this area. Let recruiting leadership know that your main goal is to keep the government from stepping in.
2. Make compliance requirements part of the recruiting performance review process.
Evaluate recruiters with compliance requirements in mind, but be careful how you do this. The emphasis should never be on how many women or people of color were considered or hired, for example. Instead, emphasize the completeness and accuracy of recruiting documentation.
For instance, it isn’t about filling in every applicant entry in your database with a “disposition” (the step and reason at which each candidate fell out of the selection process). It’s about filling in every applicant entry in your database with the right disposition, which is a quantifiable and appropriate performance metric.
3. Open the lines of communication.
Provide clear and direct channels of communication between recruiting and compliance teams. Make sure recruiters understand that their feedback about what works and what doesn’t is welcome and essential. Ask for their feedback throughout the affirmative action plan cycle and uncover any pain points that are impeding compliance efforts. You will have much better compliance participation if their needs and desires are reflected in your action plans.
One of the most important things to remember is that affirmative action benefits businesses and employees everywhere. Once you help leaders and employees understand these benefits, you will start to see real progress and lasting change — and you’ll know you were a part of creating it.
To learn more about how BCGi can help you create and bolster your EEO and affirmative action planning today, click click here.