One positive trend in 2020 has been employers embarking upon, or significantly expanding, their diversity, equity, and inclusion (DEI) efforts. Oftentimes, it is human resources professionals or outside DEI consultants that undertake this important and laudable work.
These programs frequently center on fostering a welcoming and supportive environment, facilitating equitable access to growth and opportunities, providing education to elevate the consciousness of the organization, and engaging with external stakeholders. Accomplishing these goals regularly includes work such as analyzing employee demographics, performing employee surveys, analysis of hires, promotions, and terminations, compensation equity reviews, and processing employee complaints and concerns.
While employers wish to be transparent about their efforts, some are rightfully concerned that these analyses may uncover pay discrepancies, glass ceilings, and discriminatory incidents within the organization. As a result, employers may hesitate to do these analyses, or to do them thoroughly, out of fear they will create damaging evidence that could be used against them in future litigation.
To mitigate this risk while facilitating a candid self-critical analysis, employers should consider whether—and how—to conduct these analyses under the guidance of an attorney so as to be able to invoke attorney-client and attorney work product privileges. This best practice is not new, and the confidentiality that comes with it can help yield the employer's desired outcomes to initiate and build out DEI programs.
Confidentiality tends to promote candor, and for years companies along with their counsel have performed similar work in partnership with human resources organizations and consultants, particularly in the preparation and analysis process for affirmative action plans and pay equity. If employers wish to see their DEI initiatives flourish, candid in-house or outside counsel conversations should occur about this issue.
With all that said, employers may be under the mistaken impression that anytime a lawyer is involved, all conversations and outcomes are privileged. However, the analysis is more nuanced than that and employers who desire to maintain privilege over their internal analyses must take appropriate steps to create and maintain that privilege. Of course, the privilege can always be waived if an employer decides to share all or some of its analysis.
Workplace talent professionals, HR professionals, DEI consultants, and in-house and outside counsel should be aware of this issue—and risk. Guided by legal advice of counsel, employers should consider the scope of DEI work being performed, the need for transparency as well as honest self-critical analysis, and consequent remedial measures. Subsequently, employers should assess whether conducting DEI analyses under the attorney-client and work product privileges would be useful in their particular circumstance.
Before making a decision, each employer needs to examine its culture, DEI-related challenges, and goals, risk tolerance, and desire for transparency. It is critical to at least recognize and discuss this issue before embarking on DEI work.