A Call to Action for DEI Success: An ABA Toolkit for Advancing DEI in the Workplace

On February 5, 2024, the American Bar Association House of Delegates adopted Resolution 402, which is noteworthy for its unadorned brevity:

RESOLVED, That the American Bar Association endorses the Summary of Recommendations and Guidance from the Report and Recommendations of the New York State Bar Association Task Force on Advancing Diversity dated September 2023.

As described more fully below, a working group comprised of members of the ABA’s Center for Diversity, Equity, and Inclusion and the Diversity, Equity, and Inclusion Advisory Council (Working Group) developed this Toolkit to assist private employers in implementing the recommendations and guidance applicable to corporations and law firms. The Toolkit addresses, for example, recruitment and retention strategies, professional development programs, and the creation of supportive work environments.

Background

On June 29, 2023, the United States Supreme Court issued its decisions in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (collectively, the “SFFA decision”). The Court held that Harvard University and the University of North Carolina at Chapel Hill violated the Equal Protection Clause of the Fourteenth Amendment of the Constitution and Title VI of the Civil Rights Act of 1964 by impermissibly using race-conscious admissions processes.

In anticipation of the SFFA decision, the New York State Bar Association (NYSBA) appointed its Task Force on Advancing Diversity with the aim of providing prompt guidance on a post-decision path forward for members of the legal profession committed to the benefits of diversity in the profession. In September 2023, mere months after the SFFA decision, the Task Force issued its comprehensive report.

The NYSBA Report characterizes the SFFA decision as a “setback to efforts to achieve diversity throughout all echelons of American life” and simultaneously a “call to action for those committed to the principles of DEI.” It is a valuable resource that provides a broad roadmap of how stakeholders in the legal profession can move ahead in the aftermath of the decision.

The NYSBA Report discusses the importance and benefits of diversity in three segments of the legal profession: (1) academia – law schools and other higher education institutions; (2) private employers – corporations and law firms; and (3) the judiciary. It then examines the implications of the SFFA decision and provides specific recommendations and guidance for each of the three segments. With the adoption of Resolution 402, these recommendations and guidance now constitute official policy of the ABA.

Use of the Toolkit in Implementing Specific Recommendations for Corporations and Law Firms

This Toolkit focuses on the NYSBA Report’s recommendations for private employers, which are crucial for fostering inclusive work environments and advancing diversity, equity, and inclusion within the legal profession. The Toolkit organizes the comprehensive list into thematic chapters designed to assist employers in implementing the recommendations:
 

You can access each chapter of the Toolkit via the above links. Please note that we view this as a living document and will continue to expand its content with additional materials as the law in this area develops and we receive feedback on the user experience. As we strive to support the legal community in its DEI efforts, we welcome your recommendations and ideas, including examples of what has and has not worked. Please send your comments to [email protected].

How to Use the Toolkit

The “tools” or resources provided are tailored to the recommendations contained in each section. The Working Group is committed to providing resources that are informative and easily implemented. Each section identifies the relevant recommendations, along with a brief explanation of the tools or resources provided.

Recommendations

• Communicate a continued commitment to the organization’s DEI principles.
• Assess existing DEI programs and consider engaging external counsel to conduct a legally privileged audit of DEI programs.
• Assess perceptions of DEI efforts, including through an analysis of the perception of DEI programs by employees and external stakeholders.
• Identify the specific benefits of diversity in the workplace and develop programs and initiatives specifically tailored to further those benefits.
• Increase internal controls over communications and disclosures about DEI initiatives, paying careful attention to appropriately and accurately describing those initiatives and the implications of making such disclosures.
• Implement education and training for all key partners, managers and employees to ensure that recruiters and those tasked with making employment decisions understand the purpose of DEI programs, as well as the key legal principles that govern those programs, and perform their functions in a way that mitigates legal and reputational risks.
• Appropriately collect, track, manage and utilize DEI data to increase organizational awareness of the performance of DEI programs. In addition, measure the outcomes of hiring, retention and promotion practices, as well as specific diversity initiatives, and periodically assess such data to identify and better understand patterns, gaps and opportunities for improvement.
• Foster good practices and ensure that senior leadership teams understand, and are invested in achieving, the objectives of the organization’s DEI programs, which should be well-documented.
• Monitor changes in state and local laws and initiatives aimed at protecting and limiting DEI programs and any changes thereto.
• Rely on lawful strategies to achieve goals relating to: (1) outreach and recruitment efforts; (2) retention; and (3) the advancement of underrepresented groups. Organizations seeking to amplify opportunities to attract and recruit diverse talent should consider: (i) leveraging inclusive job postings; (ii) expanding recruiting efforts beyond schools they have traditionally focused on; (iii) targeting outreach to diverse student organizations and diverse career fairs and leveraging relationships with bar associations; (iv) recruiting candidates who have taken alternate paths in school or their careers; (v) implementing structural behavioral interviews; and (vi) engaging with pipeline programs for high school and college students.
• Consider implementing development and retention programs that incorporate a range of tools, including: (1) affinity groups and ERGs; (2) advice and mentorship programs coupled with feedback and evaluation; (3) formal training programs; (4) equitable work allocation systems; and (5) networking opportunities.
• Consider implementing effective advice and mentorship programs that seek to achieve a range of objectives, including:
  • Understanding issues the employee is experiencing and helping to resolve them;
  • Clarifying commitment and performance expectations and behavioral norms;
  • Getting to know the employee as an individual;
  • Helping the employee assess their medium- and long-term career goals and identifying ways to position them to achieve those, whether for internal promotion opportunities or to pursue external opportunities in the future;
  • Identifying important skills that need developing and helping the employee identify the work opportunities that will most directly improve those skills; and
  • For high-potential employees that manifest the talent to become vice presidents, directors and partners, ensuring that firm or company leadership has them on their radar to track and develop.
• Consider, as regards client-service focused companies (and law firms), forming partnerships with clients around diversity, which may take several forms, including:
  • Bringing together affinity groups and ERGs from the employer and selected clients for events, potentially with guest speakers;
  • Running training sessions focused on building skills that employees at both organizations need;
  • Collaborating to identify secondment opportunities;
  • Jointly sponsoring selected events that provide diverse employees at different organizations the opportunity to get to know each other; and
  • Working with clients on public service initiatives that address legal issues faced by disadvantaged or marginalized communities, which can demonstrate a shared commitment to promoting social justice and equality.
• Consider factors that impact employee career trajectories at their company, and how those factors may create a greater hurdle for underrepresented minorities. Examples include:
  • How salaries and other financial incentives are structured;
  • For client service firms, how underrepresented minorities and women may be impacted by a client or firm’s desire to have a diverse team participate in a pitch or other nonbillable assignment;
  • The types of social and business development activities that are available and encouraged;
  • How parental leave is handled;
  • How fertility and family-planning challenges are handled and/or acknowledged; and
  • The extent to which flexible and reduced hours work schedules are permitted and supported.

• Consider the development of supplier diversity programs as a way to both diversify business risks and help small and diverse business owners.

Thank You

The Diversity, Equity and Inclusion Center Chair Wendy Shiba and Advisory Council Vice-Chair Lauren Rikleen extend their sincere appreciation to the DEI Center and Advisory Council members who have volunteered their time to work on this important initiative:

Aaron Burrell

Joi Chapman

George Chen

Dr. Alex Del Carmen

Angela DeSilva

Maria Doughty

Jin Hwang

Alyssa Johnson

Pat Lee

Jodi Levine

Lillian Moy

Sarah Redfield

Ravay Smith

Randi Brent Starrett

Jean Veta

Marian Zapata-Rossa

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DEI Center Staff

Amy Allbright
Director, Commission on Disability Rights

Skip Harsch
Director, Commission on Sexual Orientation and Gender Identity and Commission on Legal Hispanic Rights

Jason Ravin
Director, Council for Diversity in the Educational Pipeline and Coalition on Racial and Ethnic Justice

Melissa Wood
Director, Commission on Women

Keevin Woods
Director, Commission on Racial and Ethnic Diversity in the Profession

Selina Thomas
Managing Director