In “5 Tips To Help Employers Get The Most Out Of DEI Audits,” Law360 turned to labor and employment partner Lynne Anderson for insight on workplace diversity, equity and inclusion policies and how independent audits of employer programs can uncover and mitigate potential legal risks.
“You should do this with counsel; this should be done as a privileged analysis because we’re [in] uncharted waters” after the Supreme Court’s June 2023 decision, Anderson stated. “We are in, more than ever, a heightened environment of scrutiny. So, I think that’s very important from the onset that you take the steps necessary to establish this is a privileged audit distinguishable from a routine…HR audit.”
Anderson noted that employers will obtain plenty of different data points from an audit, like representation percentages for people in protected classes or pay at different levels of an organization, but they should be careful not to use that information as the basis for setting quotas or numerical goals.
“Benchmarking is still going to be important, [but] benchmarking will still be challenged, probably by the same ... plaintiffs that challenged Harvard in the UNC admissions process,” Anderson explained. “I think that you don’t want to just do a statistical analysis and then not dig deeper into understanding why you have those numbers.”
As an example, Anderson said an equity review that shows pay is based on performance should be accompanied by an evaluation of whether there are statistically significant differences in how performance ratings are given out. “You have to really dig deep and understand what’s happening behind these numbers. Just stopping at the numbers does not serve the purpose of the audit,” she added.
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