SHRM’s Blueprint conference—known in previous years as a SHRM Inclusion—was held in Louisville, Kentucky, from Sunday, October 26, through Wednesday, October 29. In this article, Affirmity Senior Business Consultant, Sheri Brown, recaps some of the major compliance themes that came out of the event’s varied—and occasionally controversial—speaker sessions.
1) The Main Employment Laws Have Not Changed, Though the Emphasis Clearly Has
A number of speakers at the event reassured the audience that, despite the year’s executive orders and the end of affirmative action, the main employment laws have not changed. This echoes guidance Affirmity has given throughout the year—key laws such as Title VII of the Civil Rights Act, and requirements such as reporting for EEO-1 and VETS-4212, as well as AAPs for VEVRAA, Section 503, and at the state level remain fully intact.
While this means that processes such as demographic data collection and analysis remain essential, the legal emphasis and the kinds of issues the government will actively pursue have undeniably changed.
In the session “When Regulators Come Calling: EEOC Leaders on the Future of I&D Compliance”, Jenny Yang and Victoria Lipnic (who have both held leadership positions within the EEOC and DOL) pointed to the focus on religious discrimination and the sidelining of LGBTQ+ discrimination as an example. Jenny Yang’s words, “Equality is like air. There is enough of it for everyone to have it, there’s no need for us to fight amongst ourselves for it,” seemed particularly poignant.
Lipnic, meanwhile, questioned whether the DOJ could ever realistically bring False Claims Act cases against organizations practicing “illegal DEI”. She stated that the government would have to reach exceedingly high standards of proof to demonstrate that an organization knowingly acted in an unlawful way.
The EEOC’s focus on religious discrimination was also later examined by “Title VII and EEOC Enforcement: A Closer Look at the EEOC’s Current Priorities,” though panelist Camille Olson of Seyfarth Shaw LLP observed that the emphasis was firmly on pursuing cases of anti-Christian and anti-Jewish religious discrimination. Olsen stated that maintaining a neutral workplace regarding religion was probably the safest way forward for organizations.
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2) The Current Climate Is an Opportunity to Reset
Lipnic and Yang’s talk took a pragmatic approach to the current climate, and they suggested that amid all the upheaval of the last year, now is a good time for a reset. Practitioners were advised to:
- Review their policies and programs
- Honestly assess what has been working and what simply hasn’t worked
- Review selection processes to make sure they are truly fair and equitable
- Define what the culture and climate of the organizations is—and what they want it to be
3) Data Collection and Analysis Remain Critical—But Must Be Intentional
Touching on data collection, Lipnic and Yang’s session repeated the stance of an open letter shared several months ago (to which Yang was a prominent signatory), stressing the importance of “barrier analysis”. To recap, barrier analysis was defined at the time as “a self-assessment approach used to identify and remove obstacles that prevent equal employment opportunity.” It cited examples such as “analyzing high turnover rates for particular workers to determine potential driving factors” and “conducting pay equity analyses to ensure that pay practices are fair and non-discriminatory.”
Lipnic and Yang contend that workforce analytics processes such as these are still legally necessary to ensure there is no discrimination in employment decisions. However, they recommend that organizations conduct the analysis under privilege.
One of the event’s more controversial talks, “Inside the OFCCP: What Federal Compliance Means for Your Workplace”, was an interview with ‘immediate past director’ of the OFCCP, Catherine Eschbach (she is now principal deputy general counsel at the EEOC). Eschbach repeated the current administration’s position that compliance efforts should be kept separate from DEI. She also claimed that—despite the legal imperatives others have commented on—organizations should only use demographic data on a very limited basis, and that access to this data should be highly restricted. Furthermore, she stated: “I would be very careful about sharing it with business managers or even DEI teams.”
Other talks suggested a less restrictive approach, while still recommending caution. In the session, “Hidden Legal Risks: Five Compliance Gaps HR Can’t Afford to Miss”, practitioners were advised to make sure they are clear on why they’re collecting demographic data and how it will be used. Panelists recommended that when organizations are asked by other entities to provide demographic data, they should verify the reason for the request before providing it. Asking this question can help avoid risk.
Similarly, in “Title VII and EEOC Enforcement”, Camille Olson advised organizations to document why they collect demographic information and prepare workforce analytics, while limiting who has access to the data and how the information is used. Notably, Olson also questioned whether EEO-1 reporting—which often forms the backbone of many organizations’ data collection and reporting efforts—will survive.
MORE ON DATA COLLECTION AND ANALYSIS | ‘Life After EO 11246: Why and Where Workforce Demographic Data Is Still Required’
4) Organizations Need to Be Careful About How ERGs and Mentorship Programs Are Positioned
With the administration’s various EOs taking aim at DEI programs, the legality of employee engagement programs has been something of a hot topic, with groups focused on a specific protected characteristic considered a riskier proposition if they are interpreted as exclusionary. In Eshbach’s session, she suggested that organizations should focus on creating employee resource groups (ERGs) based on shared experiences—single parenting, shared grief—instead of continuing the current focus on race, gender, and sexual orientation.
Yang and Lipnic’s session instead suggested that mentoring, internship, leadership development programs, and ERGs targeting underrepresented groups remained valid, but needed to be explicitly open to all. Organizations were warned that anything that sounded like it gave preference to women or minorities is certain to attract the attention of the EEOC.
5) Your DEI Messaging Needs to Avoid Creating Friction
In this moment, organizations find themselves torn between two positions on DEI messaging—do they comply with the anti-“illegal DEI” position of the current administration, or do they maintain their legacy pro-DEI position that many HR and diversity practitioners were hired to uphold.
Taking either position will inevitably have consequences. On the one hand, the EEOC and DOJ are being positioned to find ways of prosecuting organizations that continue their programs, and the sentiment doesn’t come from nowhere—many in your organization have never believed in DEI, and they may have voted for the current crackdown. On the other hand, many—arguably the majority—of your employees and customers strongly support DEI. The recent “Risks of Retreat” report from the Meltzer Center found that 76% of employees were more likely to stay with their employer long term if it continued to support DEI—43% said they were likely to quit if DEI were discontinued.
Many different talks at SHRM Blueprint addressed how organizations can attempt to balance the needs of both sides. In “Title VII and EEOC Enforcement”, Camille Olsen warned practitioners to watch out for stereotypes in training and “use neutral language so nobody feels bad, angry, or uncomfortable”. She also recommended that organizations clearly define the words they use around DEI, rather than leaving the door open for others to decide the meaning. “Equity” was given as an example of a term with multiple definitions.
Ahead of the event, SHRM’s decision to invite conservative activist Robby Starbuck to a debate with political analyst and CNN contributor Van Jones, caused a certain degree of disquiet. The resulting panel, “Listening Across Lines” attempted to emphasize civility on the stage and compromise in the workplace, though Starbuck was outspoken in saying that he felt that “most” or “all” DEI programs are bad, and that he considered DEI “antithetical” to Title VII of the Civil Rights Act.
The session wasn’t exclusively antagonistic, however, and both panelists broadly called for organizations to work together on things everyone can agree on. They also encouraged practitioners to realize they have blind spots, to be accepting of feedback, and to respect the sore spots of others. Attendees were also told to think about the messaging around their programs, where it was dividing people, and again to be mindful that certain terms can have different connotations for different people.
Similar sentiments were shared by the panelists on “Hidden Legal Risks: Five Compliance Gaps HR Can’t Afford to Miss”, who observed that the employees who get angry about DEI are often the ones that practitioners must try to reach out to. Practitioners were encouraged to “call people in instead of calling them out.”
At the same time, as Lipnic and Yang’s session argued, it’s important for organizations to send the same message about diversity externally and internally. Companies cannot tell their employees that they remain committed to their DEI initiatives, then say externally that they’re dropping their programs and expect to retain the trust of their employees. Organizations must communicate that even if certain practices have changed, they are committed to authenticity and ensuring their practices are fair, and the communications department’s messaging must match what is happening in the organization.
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6) AI Is Part of the Future of Work, But There Are Many Unresolved Questions
Though compliance issues surrounding the current administration’s stance on “illegal DEI” dominated much of the program, there are naturally other seismic shifts for compliance professionals to consider. Every industry is grappling with the role artificial intelligence will play in their organization, and employees need to embrace AI and learn how to use it to augment their jobs. AI’s potential use in talent processes has especially important compliance implications.
This said, Camille Olsen’s session on “Title VII and EEOC Enforcement” observed that the new administration is not currently measuring the impact of AI on employment decisions. Nonetheless, while AI isn’t a priority for the administration, this doesn’t mean that HR practitioners should neglect this critical area. In fact, as was voiced in the panel session “Inclusion as a Strategic Growth Plan”, practitioners should be making sure they’re part of the AI discussion instead of being the recipients of something created without their input.
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About the Author
Sheri Brown has 12 years of experience helping clients across multiple industries with creating non-discrimination programs and staying compliant with other federal and state reporting requirements.
Prior to joining Affirmity, Sheri worked for several years at Affirmity’s sister company, PeopleFluent. In that role, she helped clients design custom interfaces for their corporate career pages.
Sheri earned her MBA from Wake Forest University and is SHRM-CP certified.