Beyond the Moment: Creating Sustainable Diversity, Equality and Inclusion (DEI) Programs

On October 22, 2020, NAVEX Global hosted NAVEX Next, our annual virtual conference featuring 26 speakers across 11 sessions exploring issues and informing audiences on a wide variety of risk and compliance topics and trends. Over the coming weeks, Risk & Compliance Matters will be featuring transcripts from those sessions.

The following is from the NAVEX Next session Beyond the Moment: Creating Sustainable Diversity, Equality and Inclusion (DEI) Programs, featuring speakers Chai Feldblum, Patrice Palmer, and moderator Cindy Raz.

Defining Diversity and Inclusion

Cindy Raz (CR):  Patrice and Chai, it's wonderful to have you both. Your backgrounds are incredibly complementary to this very important topic.  Let's get right into it. Organizations can often struggle with what the definitions of “diversity” and “inclusion” should even be. Chai, what categories do you feel we should consider when discussing diversity?

Chai Feldblum (CF):  Sure. There are some pieces of diversity that people think about naturally, right? Gender, race and ethnicity. Often, you’ll figure out what your representation is in your workforce through self-identification surveys.

With that, I strongly recommend that, in terms of gender, you not only think of male and female but also non-binary. You can have a free text box for people to put in how they self-identify.

In terms of race and ethnicity, I think if we have learned anything over the past four months from the Black Lives Matter [movement], it's that being black in America today is different than pretty much anything else. So, instead of just an overall “people of color” analysis, many of my clients are separating out and seeing where they are in terms of their black employees, their LatinX employees, and then other people of color.

And then the two things I would add – which again, I'm seeing more of my clients asking about – is LGBTQ status and disability, because both of those are often not manifest. And if you ask about them, I will tell you that, as a lesbian and a person with a hidden disability, I appreciate when I'm asked. Because that sends the message that the employer cares. It's not something you would know, presumably by looking at me. And therefore, you have to ask. That's what I would say in terms of the range of diversity.

CR:  Patrice, is there anything that you would want to add onto Chai's perspective there?

Patrice Palmer (PP): I would first say, Chai, thank you so much for even bringing up the space of thinking around how black experiences are very different from other experiences. If we think about it, “black” actually is more global as an identifier than “African-American.” There are a lot of folks who don't identify as African American, but absolutely identify as black. As a black, queer, trans, non-binary person, if you only ask one thing, you are not being inclusive. And I think that's the piece that we sometimes miss. Compliance asks, "How diverse are we?" But we really need to be stepping a little bit further and ask, “How inclusive are we being?” And asking those questions are absolutely opportunities for inclusion.

I would even ask if there is something else that a person would want to share about themselves. To capture the wholeness of that person and allow that person to be authentic. Because looking at what folks have filled in, you may see this plethora of things that you never thought to ask.

So, again, I definitely want to say “yes” to all the things that were already mentioned, and to really understand why inclusion is part of setting the stage. Because again, if you're only looking at it from how many different people do we have, you’ve missed the sense of belonging that comes with how folks actually show up in this space authentically and holistically, and then how they interact.

Impact of Recent Events

CR:  I think that sets up a great segue into better understanding the impact various events have had on where we are today. I'm curious if you could elaborate on that, and maybe share a little bit on why now? What is different about this particular time that our audience may benefit hearing from you about?

PP:  I would definitely say one of the biggest things is the empathy. Right now, people able to see and feel in a very different way; it's a visceral reaction. And I think that is why the [Black Lives Matter] Movement has begun to surge the way it has. When you see repeated disenfranchisement, repeated separation and isolation, there’s a natural sense of, “That's not right.” Folks are seeing that, and they're trying to figure out how that shows up in the workplace. And I think it didn't show up before, really, because of how our workplaces were foundationally created. I was not in mind when we started looking at structures and how folks are able to show up.

So, I think now we're moving from this “all are welcome” mantra to the realization that we need to be more intentional about who we are looking for, how we are creating the infrastructure in order for folks to be able to thrive. I believe folks of color, particularly BBIPOC, black, brown, indigenous and all people of color have always been able to survive the infrastructures that they've been a part of. Now, more than ever, is the time for folks to learn how to thrive. And by thriving, again, we're introducing [the question of] what does inclusion look like? What is that sense of belonging? How are we bringing folks into the conversation that have not historically been there? How are we edifying the responses that folks are giving and acting on the feedback that is given rather than just taking it and storing it?

I think these recent events have brought to light things that BBIPOC folks have constantly been dealing with, a lot of times in silence, as well as other marginalized communities. Because I think we're all now realizing that this is an interconnected struggle. I don't separate my blackness from my queerness. I don't separate my blackness or my queerness from my trans identity. So, when I come into a workplace, I come in as whole, and I need to be able to be accepted in that way as well.

I think now is a time when folks are absolutely being able to see [these things], and we’re moving from a knee jerk reaction to, “Let's actually create some infrastructure to do the work that we say we want to do.”

CR:  Patrice, you're hitting on some really powerful points that I think I’ve seen. Historically, organizations that have held a check-the-box mindset. They've defined diversity in a very limited scope, and you're bringing out words that I hope a lot of our audience will take away – such as intentional, empathy and thriving – that I think lead to building a culture of belonging. Chai, would you be willing to walk through how you feel some of these issues have impacted businesses in general, as well as compliance specifically.

CF:  There's been a huge impact. I mean, I think we can all feel it, that we are in this particular moment. And I think a huge piece of that, which I have seen with clients and corporations across this country, is a desire to be more intentional. A desire to figure out not only what systems do we have, but how are those systems working? And I think a piece of that, to underscore what Patrice said, is a feeling of awareness that is different than before. Just using my own personal experience, I had read Ta-Nehisi Coates' Between the World and Me about two years ago. I’d certainly recommend it for those who haven't read it. It did not make much of an impact on me two years ago; I didn't even necessarily remember, had I read it. [But when] I read it again last month, everything felt different. I felt like I understood some of what he was saying in my core in a way that, as a white person, I had never understood. Regardless of how much I'd been involved in the DEI effort.

I think that companies and businesses are trying to be intentional with their programs; trying to get at some of the systemic, unaware racism that exists. And I think for compliance officers, the reason that's so important is you're all about integrity. You're all about ethics. You're all about how should your workforce act? And while you may have been thinking about financial integrity and anti-corruption, all of that, this is a core part of how you expect your workforce to act. So, it's not [the responsibility of] HR and legal only. It is HR and legal, and it's also you in compliance.

Generational Shifts

CR:  Well, let’s talk a little bit about the importance of all the various functional groups that our compliance officers need to work with in a more united way to achieve the diversity and inclusion goals organizations are setting. I'd really like to talk about the wave of energy coming from younger generations that is evoking so much conversation, not only here today but across the world. Both Gen Z and Millennials are creating this intentional dialogue that we're having, and it's a powerful movement. I would love to get your perspective on what you're seeing and why you think this is also playing out in this particular time.

PP:  Working with students, so I get a chance to meet students when they first come into college. And they come in with the expectation that we will have these types of conversations. They're looking for communities that are not just diverse visually, but have a multitude of complex nuance to themselves. Because that's what they're used to. Our world has become completely integrated in so many different ways, but at the same time, we're still isolated from one another. So, when you have students come in, they're learning – even though they have been integrated – about the people they’ve been in proximity with.

In classes, it's definitely much more nuanced. You can't just have a basic structure now. Again, using myself as an example, as a black, queer, trans, non-binary person, how I show up in the world is very different than even the vast majority of my students show up. So, I use my lived experience to let them know, okay, this is a great business problem, but how would that affect me? How would I be able to lead a team that doesn't look like me, who may not have some of my lived experience. How do I do that? So, we're critically challenging our students as they come into the classroom to think about this beyond what they see directly in front of them, beyond the surface level. And they are now taking that into internships, into their first job experiences. And they're absolutely expecting organizations to know things.

One thing that was very minor, but also very great, I had a student come back and say, "Hey, I went to work, and they don't know anything about pronouns. How? How can they not know about pronouns? Why is that not something that we're talking about?" And I was like, "Wow, what now do we need to do with our employers to also pull them in?" To say, "Hey, our students are moving fast." And there's, again, that expectation. At Colorado State University and in the College of Business, we've been able to do some of those things by working with companies. Something like [pronouns] is very simple, but it means so much to a student, to an employee, to be able to be recognized holistically.

I think our students, our generation is moving. It is a workforce that has every type of person now in it. And therefore, as organizations, we need to rise to that challenge as well, to be able to create an environment where folks are able to thrive in a way that they weren't able to do even five years ago.

CR:  I might even say even compared to one year ago, Patrice.

PP:  Absolutely.

CR:  Chai, I know you've got great perspective on this, particularly in light of your background. And I would love to hear anything that you might want to add in relationship to what Patrice has shared with us.

CF:  Think about what our workforce is going to look like. It's not only that there are so many younger people now, but that the number will increase. The question is, how do we set up our workplaces now so we can both meet those expectations and teach ourselves to meet those expectations with understanding as opposed to criticism and cynicism? And I think about it, I mean, I'm a Baby Boomer. I'm 61, grew up in a certain era. In terms of civil rights, it was about “equality,” and that meant treating everyone the same. But if everyone is not the same in the first place, treating them the same doesn't necessarily treat them equally. I mean, equality to me is treating other people as equals, as opposed to just the same.

Think about that [in the context of] the quote unquote “small piece" about pronouns. Here I am, I'm a member of the LGBT community, and yet for many years it was so hard for me to use “they.” I was like, "Oh please, I can't. Grammatically, I just can't." And then finally at some point I thought, "Okay, so what's more important, my sense of grammar or someone else's sense of feeling seen? What's actually more important?" And now over the past year when I write documents for my clients, I say, "Employee, they," and I always drop a footnote. If you're not comfortable with that, obviously you can say “he or she,” or “he/she/they.” But even if there’s just one non-binary person reading that, think about how that person feels. And think about the education you can give to everyone else by explaining why you're using that. Small things actually lead to big things.

CR:  I couldn't agree with you more. Little things make typically the biggest difference. As does making sure that we're taking time to create that culture of belonging and celebrating the individuality of each person that walks through our doors. Because that's what ultimately is going to strengthen your organization.

Implications for Businesses and Compliance

CR:  For organizations that might be struggling to get on board with the importance of diversity, inclusion, Patrice and Chai, I would love to get your perspective on what you think the implications are for businesses that may be lagging behind on this movement right now.

PP:  The first thing that pops up for me would be to think about this as any other innovation within your organization. Would you be lagging behind if it meant that affecting profits in a negative way? This is exactly the same. When folks feel that they have a sense of belonging, they feel an investment to their organizations. They work; they do more. Their productivity just goes up because the morale goes up, right? Because I'm being seen. As Chai said, just by using those pronouns, I know you know who I am. I don't have to explain myself. I don't have to fold myself down in order to show up. It takes a lot of energy to suppress myself, so being able to see myself in written print, seeing “they,” I know that you're talking about me. I know that you took the time to do that.

I highly encourage organizations, if you want to stay competitive, then you’ve got to be moving. You’ve got to know what’s coming next, just like with any other innovation.  But this is a human-powered business. This is about the humanity of our employees, coworkers, colleagues, and customers. This touches so many different things. When we become stagnant in one area, we begin to grow stagnant in others. That would be what I would absolutely add as a person who knows that when I am seen, when I am invested in by the organization, I am able to take it to the next level because I know that they have my back. I know that this is someplace I need to be. Again, if you want to stay with the times, you got to do the work.

CR:  Absolutely agree. Chai?

CF:  Yes. Yes and. There are three reasons to think about the business need for really doing diversity and inclusion well. I mean, the first is all the research that shows that if you bring in people with different life experiences, you will get new and better ideas – assuming you've created a culture in which everyone is able to work with each other, which takes that intentionality.

Two, a lot of companies spend a lot of time hiring, making sure that they get diverse folks in. But if there's not real inclusion, then those folks will leave. And if they leave, they won't end up getting promoted. The fact of the matter is, companies want to have that diversity. Here, we just used the example of pronouns. Those examples appear over and over again with different races, genders, It's about learning what communicates the inclusiveness.

Finally, the competitive business reason is that people from the public notice. Shareholders notice. Employees who are not diverse notice if there's not diversity and inclusion. And there will be adverse business effects, either in public relations or in harm to the brand.

What a Diversity and Inclusion Program Entails

CR:  Chai and Patrice, let's dive into what an organization can do and should be thinking about in more detail. What should a diversity and inclusion program entail? What are some best practices that you're seeing in other organizations right now?

PP:  I think first you need to take a pulse. What is missing? What is not there? We have to have an awareness before we can do anything. Once we have an understanding and an awareness, then we can begin to do what I like to call an equity audit to get at the root, to figure out where are we and where we are trying to go. Sometimes we skip that part because we just want to “fix” it. But we should be trying to shift the culture into a more inclusionary space, and you have to know what you're doing in order to do that.

As Chai has already brought up, it’s about having those surveys, being able to look at your data over time, using benchmarks to determine what do you want to do. It’s intent versus impact. My intention is, “This is what I think we should be doing.” But let's see what that impact is in three months, in six months, in nine months. By looking at that gap, we can start to make actionable objectives, things that we can monitor, to create metrics on and to move forward.

I've had a chance to do that in a couple of organizations that I've worked with, looking at the interrelations of departments within organizations. For HR, what is the demographic data that we already have, and how are we moving that forward? What are the internal and external objectives that we are trying to create? When we're able to do that, we're able to move that needle and shift the culture. It's not about “fixing,” and we can definitely don’t want a knee-jerk reaction. There is some low-hanging fruit that we can take advantage of and move the needle.

The first thing is to make sure that we are looking at what our focus is. Reviewing the policies and procedures that we already have in place, where are the gaps that come within that? Then, create structures to leverage employee input so we know what our employees are asking of us and what we're able to do. That’s how take some actionable steps toward an inclusionary climate.

Pay and Promotion Equity

CR:  Patrice, you brought up something important regarding looking at the data. Data always tells a story. And Chai, one of the data points that I think organizations really need to pay close attention to is any unintended impact their programs might have on pay and promotion equity. Could you share from your perspective some ways to approach managing pay and promotion equity?

CF:  You want to know what's going on with your promotion systems? Look at the outcomes. You have to start with intention, but then you need to measure the outcome. This is something that you're partnering with HR on; they have the data. Often when you partner with an outside council, you can also have some of that analysis, which can be helpful. You want to see what's the rate of promotion, but the real thing is prior to the promotion. Because people are promoted if they've been getting high marks all the way through.

And the research shows – and this is across companies – that black employees are consistently rated lower by several points than white employees. What's going on there? Lots of companies have very established performance evaluation systems, but they don't often mine the data from those systems with regard to demographic outcomes.

That's the first thing you want to do. You want to collect that data and then you want to see if there are themes. Is there a manager that's consistently not rating the black employees higher? Then you do a deep dive. Very often it's not because of any blatant racism. If it is, you'll find that out in the deep dive.

But often it's about being intentional. It’s about wondering, "Am I giving those people stretch assignments in the same way?" "When I give feedback, am I giving feedback in a detailed way?" Because it's often easier to give feedback to someone who reminds you of yourself. And the more that you give detailed feedback, the more that you create a relationship with the person, the more you think that you can give them more assignments.

It's about taking existing systems, figuring out how to use those systems to collect data, and then taking actions in response to that data that don't put people on the defensive. That simply bring them into the overall goal.

CR:  How do you think, Patrice, that organizations should be measuring their performance and their progress in this particular area?

PP:  I love, as Chai said, to bring in that demographic data. As a black employee, I have been rated low in areas where I'm also not given any feedback in order to improve that. It's kind of like you're not doing this, but we really don't know how to make it work for you. And a lot of times it's around perceived attitude or momentum. "Hey, you're not moving as fast as someone else." Not taking into account the other things that are also happening in the company. I may be heading an affinity group, I may be doing all these other different things within the organization, which is also bringing my performance down. There is no foundation for me to be able to uplift myself and be competitive.

As was stated before, it's an attitude. And a lot of times it's an unconscious attitude. "I assumed that ..." Instead of having the conversation with folks. One of the things I would definitely say regarding performance opportunity is to think about how we are using metrics across the board. Why are we using them, and how are they differentiating between people with all the complexities and nuances of their identity? Are we also putting in spaces for that inclusionary understanding around diversity and inclusion that are tangible? What are those tangible things? Again, I think we can make sure that we do that in a way that is competitive, while also ensuring, engaging, promoting and uplifting folks.

CR:  One of the things that I am seeing trend more and more, regarding performance and feedback, is organizations moving away from their traditional performance model and encouraging more in-the-moment feedback. Because Patrice, you're spot on, managers are not always comfortable leaning into candid conversation or providing tangible feedback for people to be successful. And that includes tangible feedback on what they're doing well. So, lots of opportunity for organizations to revisit at their current performance review process and determine if the way it was is what should be going forward.

Cultivating an Inclusive Workplace

CR:  I'm curious if we could walk through some of the things that you think we should be prioritizing and encouraging our audience to think through on advancing and cultivating an inclusive workplace. Obviously, we want to focus on our desired outcomes. Chai, I'm wondering if you would like to elaborate on that for us?

CF:  First, focus on your desired outcomes. Have a clear idea of where is it that you're trying to get to. Diversity along what dimensions? What will inclusion feel like?

Two, review and revise, if necessary, your current policies and processes. Again, this is where HR, legal, and compliance should all be engaged together. Because one of the things that many companies don't have yet, though more are doing it, is a respectful workplace's policy as part of their EEO or anti-harassment, anti-retaliation policy. Because you don't want bad behavior going on, or people experiencing unwelcome conduct, even if it's not based on any protected status. You want a culture in which respect is expected. And if people don't act respectfully, there will be consequences.

Often in the code of ethics there's a paragraph on, "We expect everyone to be respectful." And then there's nothing more that really drills down into that. That is something that the employees should get trained on.

And review your processes. Ensure that if there are complaints, they're really dealt with fairly, timely, et cetera. You want to create structures to increase and leverage your employee input. And that's not just employee resource groups or affinity groups, that's important in terms of a safe space for folks. But a structure like an employee-led diversity and inclusion council. And again, there are ways of doing that.

And then look at how effective they are. Your sourcing, recruitment, and hiring; your retention, inclusion, and promotion. Also review the diversity of your contractors and suppliers. That sends a message as well.

And the most important thing: remember that progress takes time. Set realistic diversity goals, because you want to reach them. Manage expectations of employees; that's part of leveraging employee engagement.

CR:  Chai, I would add, in addition to “progress takes time,” I also would say that it takes persistence. We have to build that intention into our efforts and be very, very persistent in order to eventually bring about change. And that does take time. But again, it's not something that we check a box and we're all done for today. We have to keep digging.

Inverting the Umbrella and the 5 Es

CR:  Patrice, I would love to hear some of your perspectives regarding “inverting the umbrella” and things that we should consider in relationship to this.

PP:  Absolutely. I think we absolutely have to reorient the conversation. We have to think about it as an expansion. Instead of, "Who are we trying to pull in," ask "How are we expanding out? How are we casting the widest net?" Particularly by placing marginalized folks at the center. Again, our structures were not created with marginalized and minority voices in mind. A lot of our structures, even though they were created with the best intentions, are not expansive enough for the vast majority of people. Therefore, those people are unfortunately isolated outside of that circle. We have to make sure that we expand that circle. We have to remember that people follow why you do something, not just what you do. They want to be invested in the why of the organization.

I try my best to utilize what I call the five Es: Educate, elevate, expose, experience and edify. Basically, what that means is:

  • Educate. Be knowledgeable about why you're doing things and what you're doing. Do the legwork, figure it out, and have that as a resource that you can constantly go back to.
  • Elevate. When you elevate folks, you center those voices that had been on the margins of the organization. You're centering and you're building out from there.
  • Expose. When you want to expose, get in proximity. Get in proximity to folks. That means talking with your coworkers and your employees about their experiences within the organization. It is great to put on a performance review just to talk about, "How do you experience our organization?" Because again, the outcomes may not be exactly what we think they will be. Once you start talking to folks, you'll be able to really gather some qualitative data, those lived experiences, those voices from folks to say, "Hey, this has been my experience” and “I wish we could have done” or “I wish that I can do these things." Start making note of that.
  • Experience, again this is about time. How do you grow a muscle? Time under tension, right? You got to constantly be doing something, you have to be constantly moving in order to get and catalog those experiences. "This is what we did, this is something that we kind of set out to do, and this is how it showed up for us."
  • Edify. What I mean by edify is, allowing those voices to be raised higher in the moment. One of the best things that ever happened to me in a meeting was when I was talking about something, about my lived experience, and somebody cut me off and started talking about something totally different. And the CEO came in and said, "Hey Patrice, I believe you were talking about this particular thing and how it affected you. Can you give us a little bit more about that?" And in the moment, inside I was like, "Ah! You saw me, I can't believe you just did that." The person was like, "Oh, I didn't even realize I went into your lane." My voice was edified in that space. It also happened to be that I was the only black person in that space. It happened to be that I was the only trans person in that space. When that edification happened for me, you were able to see and hear my lived experiences and it played into what our business model was already doing, from my perspective.

So, again, as we're thinking about this, these are some of the small things we can do as we're working up to those bigger things to shift. And I really want to put that emphasis on the shifting of a culture. Sometimes folks get afraid that you’ve got to change everything. It's really about shifting, about taking it to another level. And that other level is inclusion, that sense of belonging that you really, really want.

Interdepartmental Collaboration

CR:  One of the roles that is obviously evolving with great importance in our workplace today is that of the compliance officer. Chai, you had brought up the importance of working across the aisle with legal, HR professionals, et cetera. How do you feel compliance officers can better interact with these other functional areas in a productive way that brings departments together?

CF:  Obviously, publicly held companies have always had compliance officers. But what I am finding is that even companies that are not publicly held have realized the utility of a compliance officer, which is even better in terms of thinking strategically about interconnecting between HR, legal and compliance. I want to highlight what Patrice just said. I think you're getting the themes of self-education. And flowing from that, intentionality. I heard this story just this morning. Someone was talking about a bank that had a rule stating checks had to be made out to your legal name, which makes perfect sense as an anti-fraud measure. Well, a black man had a check made out to him by his nickname. He tried to cash the check and the teller said, "I’m sorry, but it needs to be in your legal name." He went home, he wrote out a check to his roommate, a white woman, with her nickname, and she went in and cashed the check no problem.

It's not like you're going to change the rule, right? Unless you decide if I can't stop some of the implicit bias, maybe I do have to think about changing the rule, or I need to think about how to do better training. This is the type of thing where compliance would care about what happens out in the field. But their mechanism for getting out to the field is usually HR. So, they need to partner with HR to get that message out. And if now we're talking about an issue of discrimination, either against an employee or a customer, that's when legal will get involved. Compliance, legal and HR are all understaffed. Every company I talk to, they need more people. Well, why don't you engage with each other, create synergy, and it'll help.

CR:  I have to share on a personal note, as an HR leader, one of the things that I actually value most about my role at NAVEX Global is the relationship I have with our compliance officer, our general counselor and our deputy compliance officer. The four of us have had happy hours, and I consider them not only my dear friends, but we're also each other's advocates. And I believe strongly that we are better together, we serve NAVEX Global better together. And if there has ever been, for any of our participants, pause in reaching across that aisle to legal or compliance or HR, whatever the case may be, the advantages of doing so are just endless. You will absolutely strengthen your knowledge, you will strengthen your effectiveness and you will be more united to bring about changes you're probably striving to do on your own, but will be able to achieve much more easily with all of those other individuals at the table.

Role of Senior Leadership

CR:  Patrice, you had brought up a really wonderful story about how a CEO had taken time to edify you in a meeting. And whether it was you or anybody, that role of the senior executive in today's workplace has also gained quite a bit of significance. I would love it if you would talk a bit more about the role that you believe they must continue to play, both in terms of messaging and in bringing about change?

PP:  Absolutely. It's about the accountability. When your CEO, when your senior leadership is saying, "Yes, this needs to happen," then there’s follow-up to ensure that these things actually happen. I think a lot of the time it gets stuck in middle management. Managers who are supposed to enforce these things aren't always able to have a really good understanding of why it needs to be implemented, and therefore it's harder for them to be on board. But when you have CEOs and senior leaders who are completely invested, interwoven into DEI, it takes it from separate units to an inclusionary approach where all these things are working together.

I think that for our senior executives, our senior leaders, you absolutely have to be on board and your eyes have to already be on what that impact needs to be. And ensuring that it continues to happen; checking in to ensure that we are hitting our metrics and holding folks accountable to that. But there has to be a belief. There has to be an investment from the top that says, "I believe that this should be in every avenue of our organization." And when that happens it becomes a lot more seamless. Because again, it's tied into every space and it's not just HR making sure it's happening, or it's not just legal making sure we're not getting sued for it. It's everyone working together to ensure that it's working. And we hold ourselves accountable coworker to coworker as well.

CR:  I couldn't agree with you more on that, Patrice.

Identifying, Investigating, and Managing Misconduct

CR:  Chai, would you be willing to walk through how compliance programs should address challenges in the areas of investigations and corrective actions?

CF:   Making sure that everyone feels safe coming forward with complaints; that complaints are investigated in the appropriate way; and that proportionate corrective action is applied. All of those are key to establishing the right culture. And there are two tracks to that. One is reviewing those processes – what do we have in place? And the other is, as Patrice said, finding out from people whether they feel it has worked well in the past. We do a whole cultural assessment for companies where we're coming in, asking questions about safety and respect, including, "Do you feel psychologically safe to bring forward a complaint?" "How do you feel a complaint would be dealt with, if you brought it forward?" "If you didn't bring it forward, why not?" There are things that companies just don't know, especially down at lower levels of the company. And it's worth finding out.

And we have found a third party coming in, as opposed to HR, can make a big difference. So, you learn about those issues. Then you look in terms of your processes. Do you make sure that people are not retaliated against when they come forward? Not just have that in your policy, but be proactive in following up? Are you in fact doing timely investigations and talking to all the people you need to? Most importantly, are you applying proportionate corrective action? And one of the things we've actually pioneered at Morgan Lewis is a corrective action matrix that digs into different levels of misconduct, identifies aggravating and mitigating circumstances. And by the way, someone being higher up in the company is an aggravating circumstance, not something that lets them get away with something. And then the range of appropriate corrective actions. The process of setting up that matrix, which we do with HR, legal, and compliance, if compliance is engaged, is a very good process. There are things to be done in all of these areas.

CR:  Chai, you had brought up a point around the importance of timely investigations, what would you advise our audience to think about regarding defining timely investigations?

CF:  Well, number one, your company needs to give you enough resources to do a timely investigation. How timely the investigation can be is going to depend on how well-resourced you are. But then once you are well-resourced, different investigations take different amount of time. Some can be very quick, because one of the things you're trying to do with these levels of misconduct is stopping small things early – nipping things in the bud. So, if someone complains early, there won't be a year of misconduct to investigate. And by the way, if you create a psychologically safe workplaces where people feel comfortable coming forward, they will come forward with issues of financial misconduct as well as discrimination. I mean, it affects across the board.

I think it's making sure you're well-resourced, making sure you're trying to get things early on. Let people know about that matrix, right? About what's not okay. Be kind to yourself when an investigation does take longer, and help manage the expectations of the person who brought the complaint.

Lessons Learned

CR:  We have talked about a number of areas within this particular topic today. I would love to have both of you share highlights of lessons you've learned that you think would perhaps be important for our audience to take away today.

PP:  The first thing is that DEI doesn't happen in a silo. It is interwoven into every level, into every facet of the organization. It has to be an investment, just like any other thing within the organization. It cannot be an afterthought. It can't be something that is not taken seriously or only held in one office. It has to be something that's constantly talked through and talked about. Because again, people are complex and nuanced. You have to make sure that you as an organization have clearly defined what diversity and inclusion looks like for your organization, so that everyone has a common language. Then folks know when something is out of sorts, because they know what it should look like. Also looking at when there are issues, how do you address that, again, in a timely manner? With fervency and energy, just like you would do with anything else. Because this is just as important.

And when folks see that and know that, they do feel safer. They feel that they can bring their whole self. Just ensure that inclusion is really where you're shifting your culture to, understanding that diversity is something that you absolutely need, but we need to be able to challenge ourselves to step up into how an inclusionary culture not only benefits us in every tier of the organization.

CF:  Here are the few things I would add to that. Yes, all of that, and focusing on why it does matter. Boards care about this now. There have been about 12 shareholder lawsuits against boards where the company has announced very optimistic diversity goals, and now they're saying, "Well, you're not carrying out your fiduciary duty because you haven't met these goals." People are watching. So, it makes sense to do this as a business need. It's a social justice need, absolutely. I don't think we should lose sight of that. But it's also a business need. And what that means is the head of the company has to agree to invest the resources to make this clearly a business objective.

For example, very important, I mentioned before, having an employee-driven diversity and inclusion council. And there are ways to do that well. But it's not, "Oh, let's ask for volunteers." I mean, you might want to ask who's interested. But if you were setting up a committee to deal with an important business objective, you wouldn't just put people on who volunteered. You would figure out who you needed from the company. And the CEO would make the final decision about who's on.

I've been doing this for a long time, and about two or three months ago I wrote a road map for DEI initiatives. It includes a lot of what we talked about here, but it's really a set of steps. There are experts out there who can help. I think self-education and intentionality are important; knowing what your road map is and then practicing patience, perseverance and commitment.

CR:  Patrice and Chai, I want to thank you for taking time to share such wonderful perspective on this incredibly important topic. Something that I'm known for saying is that organizations hire people that choose to be employees, not employees that choose to be people. And if you think about it from that angle, you can start to focus on the experiences that matters most, and ensure that individuals feel safe and have a sense of belonging. This has been a fabulous session. Thank you both so very much for your time today.

PP:  Thank you.

CF:  Thank you.

Chai Feldblum helps companies and organizations create safe, respectful, and inclusive workplaces, focusing on preventing and responding to workplace harassment. Chai served as a commissioner of the Equal Employment Opportunity Commission (EEOC) from 2010 to 2019. As a director of Workplace Culture Consulting at Morgan Lewis, Chai’s policymaking background and insights on the EEOC’s enforcement of employment civil rights laws inform her approach to helping employers create diverse and inclusive workplaces, as well as to performing investigations and counseling employers.

Patrice Palmer is an intersectional leadership educator with 15+ years of curriculum design and facilitation experience. They hold the identities of being Black, Queer, and Trans (non-binary). Currently, they’re working in a joint appointment in the College of Business at Colorado State University as the inaugural Director of Social and Cultural Inclusion and as a D&I Specialist with New Belgium Brewing Company.

Cindy Raz Senior is Vice President of HR and Organizational Development for NAVEX Global. Cindy brings more than 20 years’ experience leading human resources functions and business operations within rapid-growth organizations. Since joining NAVEX Global, Cindy has led several change initiatives associated with the merger and acquisition of multiple companies, including enhancing existing cultural programs, reducing undesired employee turnover and establishing people programs and strategies as a critical contribution to business success.

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