Think back to high school. When you took a big test, did your grade depend on your ability to arrive on time with a functioning pencil? Or did it depend on your knowledge of the subject matter?
Of course, you would only earn a passing grade if you illustrated your understanding of the material. Showing up with the proper test-taking materials and preparation was only the base expectation; no teacher would reward you with an A+ for turning in a blank sheet of paper.
The same can be said about equal employment opportunity (EEO) and affirmative action compliance. There are certain technical requirements that get you to the starting line — such as posting your policies in a public place, including specific language in your job listings, running reports and analyses, and creating an affirmative action plan. But these elements won’t help your company run a successful race.
Your annual EEO-1 survey, for instance, might reveal that your selection rate for people of color is lower than other demographics. However, this information is only useful to your company if you are willing to take the vital next steps: engaging in a self-critical analysis to discover why this inequality is occurring and then taking action to address the discrepancy.
More Than a Technical Exercise
There are many reasons to treat EEO and affirmative action compliance as more than a technical exercise. To start, your affirmative action program is likely your best — and only — tool for actively identifying, addressing, and eliminating employment discrimination issues. When done in good faith, these efforts create a more level playing field at your company and help you foster an environment in which people are judged on their merits.
Over time, your dedication to EEO and affirmative action compliance will produce a work culture in which the promises of diversity and inclusion can truly be realized. Your company will have healthier and more productive teams, and you will enjoy an enhanced ability to recruit and retain excellent employees — top talent tends to be attracted to diverse, inclusive, and merit-based workplaces.
In addition to strengthening your company, committing to compliance can help keep your business out of hot water should it find itself under the scrutiny of the U.S. Department of Labor (DOL).
When investigating a complaint or initiating a compliance audit, the federal investigators assigned to your case — known as “compliance officers” — will treat you similarly to how your high school teacher treated you on test day. You will not receive any credit for checking off technical compliance boxes — that’s just the base expectation, like arriving to the classroom on time with a blank notebook and a sharpened pencil.
Ultimately, your company will be judged on its level of compliance. Investigators want to see that you are living up to the language on your bulletin boards and in your job postings. They want to know what you do with all those reports and analyses after they are run — and they want evidence that you are actually taking the steps outlined in your affirmative action plan.
Companies that only focus on technical compliance create fertile ground for federal investigators. If you have only been doing the bare minimum, compliance officers will dig deep to unearth discrimination you didn’t even know existed at your company. Even businesses with 100% compliant affirmative action plans sometimes find themselves on the wrong end of six- or seven-figure settlements. Once the investigation concludes and the fines are paid, the DOL publishes a recap for the world to see.
The fallout from a compliance violation extends far beyond monetary damages. Your company could also experience a lasting — and potentially debilitating — hit to its reputation. When you are deemed a “bad” place to work for a specific demographic or minority group, that stigma will hinder your ability to attract top talent to your company. It could also serve as an eye-opener for current employees who ultimately decide to take their skills elsewhere. Diversity and retention go hand in hand. No company can survive for long under these circumstances without swift, tangible action to change public perception and remedy the issues.
By increasing your commitment to compliance and digging deeper into the root causes of discrimination and poor compliance in your workplace, your company will be able to notice issues boiling beneath the surface well before they erupt into full-blown fiascos involving the federal government.
Cassandra’s Curse
Most companies struggle to be proactive about compliance because they do not devote adequate time and resources to the cause. EEO and affirmative action compliance are rarely considered revenue-generating endeavors, so companies prefer to do as little as possible. They check off the necessary tasks on their compliance program checklist and hope for the best.
As a result, employees in charge of compliance often feel like the “Cassandras” of their organization. In Greek mythology, Cassandra was a priestess who had a gift and a curse. Her gift allowed her to see into the future, but her curse ensured no one would ever believe her prophecies.Similar to Cassandra, compliance professionals know an awful lot about potential problems at a company, but they are often powerless to take action against them.
This is because most companies delegate EEO and affirmative action compliance to members of their human resources and legal teams, adding these duties on top of their existing responsibilities. Being on the “compliance team” usually does not mean that compliance is your full-time job. It simply means that the rest of your colleagues will generally not have to pitch in.
Imagine the countless duties that human resources professionals and legal team employees are already responsible for, and you get a pretty clear picture of how little time they have for additional tasks. A considerable portion of their day-to-day jobs involves putting out fires, and these pressing concerns take precedence over proactive compliance projects — such as preparing annual affirmative action plans. Often, EEO and affirmative action compliance initiatives get delayed or fall entirely to the wayside, creating an environment more prone to discrimination, a DOL investigation, and harmful fines and publicity.
Some companies believe their compliance professionals should inherently want to foster a more inclusive workplace, assuming they should be able to accomplish their mission with minimal compliance support and resources. But this is only half true. Yes, these professionals are already deeply committed to diversity, fairness, and making a positive impact on people’s lives — that is why they got into this field of work in the first place. However, this passion does not magically create more hours in the workday, even for those with the best understanding of compliance. When compliance professionals wear too many hats, they simply cannot do more than meet baseline technical requirements.
Envisioning True Compliance
Companies must view compliance as a continual process rather than an annual checklist. That means dedicating full-time employees to the task, making it their only job, and providing them with ample resources all year.
There is no one-size-fits-all approach to EEO and affirmative action compliance. A fully funded program can take many forms and carry out countless functions — the possibilities are limitless. It all depends on your organization’s greatest priorities and needs.
If given ample time and resources, a compliance team could easily oversee hiring processes, retention efforts, promotion practices, termination policy enforcement, internal messaging campaigns, succession planning, and myriad other functions that typically do not receive enough attention. Your compliance professionals could also take a deeper dive on the assignment of Census job codes, affirmative action planning, and job group structuring — and they could provide more regular and robust employee training.
Additionally, throughout the year, compliance professionals should be prepared to leverage unforeseen opportunities when they arise. Our team recently witnessed two such situations in 2020 alone. During the COVID-19 pandemic, for example, companies were faced with conducting layoffs, adjusting to remote work, and coping with countless operational concerns. This massive upheaval was accompanied by a litany of compliance challenges, and companies could have benefited from turning to a team of dedicated experts when navigating those uncharted waters.
Similarly, when America and much of the world recently erupted into protests against police brutality and racism, hundreds of companies released statements of support for the Black Lives Matter movement — yet virtually none of these statements said anything about their affirmative action compliance programs. Why? Likely because those companies did not involve their compliance teams when crafting these messages. Ultimately, it was a missed opportunity for businesses to stress the importance of affirmative action and illustrate the steps they take to combat discrimination and create more inclusive workplaces.
Between carrying out their core responsibilities and responding to situational opportunities throughout the year, there is always something a compliance team could be doing. The key is providing them with resources and support — and then granting them the freedom to dig deeply into their duties.
Committing to Compliance
Committing to long-term compliance starts with executive buy-in. There must be at least one person in the C-suite who champions this mindset and works to instill it throughout the rest of the leadership team.
Many organizations have elevated their diversity and inclusion function to the executive level by creating a chief diversity officer position. If your company has someone in this role, he or she would be a natural fit to be your advocate. If your company does not have a senior leader dedicated to diversity initiatives, however, your biggest compliance champion likely resides atop the human resources department or legal department.
Increasing compliance supporting the C-suite is no easy job. Even at organizations with the best intentions, it’s natural to experience resistance to the idea of ramping up EEO and affirmative action compliance efforts. One primary reason for this is that the dollars don’t add up. You likely cannot provide any data or profit and loss spreadsheets that prove the ROI of focusing on compliance.
But even if you could prove the financial value of compliance, you’d likely face additional hurdles. You are essentially asking your company to spend time and money to look for potential problems, drag them into the light, and confront them head-on. This is the antithesis of everything business leaders have been taught about mitigating their company’s potential legal exposure. No one wants to hear their company is likely engaging in some form of discrimination — or that it’s only a matter of time until the DOL comes knocking to collect damages on behalf of alleged victims and create negative press.
To overcome these hesitations in the C-suite, start by explaining how EEO and affirmative action programs can provide a broader, stronger base from which departments can grow their revenue contributions with diverse talent, fresh ideas, and a culture that encourages innovation. Also, explain how these programs are the best way for a company to mitigate its legal exposure with regard to employment discrimination.
You might not be able to quantify a clear, guaranteed ROI from investing in compliance, but you can stress the hidden value of implementing strong EEO and affirmative action programs. By taking proactive measures to eliminate discrimination and potential DOL investigations, your company can avoid plenty of financial costs and heartache by stopping violations before they happen.
All told, the most meaningful results will occur if altruism and good faith drive your company’s commitment to compliance. Although technical compliance is a legal requirement, true compliance is simply the right thing to do — for your company and for our country. Now is the time to raise the visibility of the EEO and affirmative action programs inside your organization. Make sure your leaders know the importance of investing heavily in these initiatives and the full-time employees charged with leading them.
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