Organizations are increasingly striving to create workplaces that are both diverse and inclusive. Here are three legal tools to help get you there.
01 | Workplace policies
Policies are the rules by which the workplace runs. Review existing policies carefully, honestly, and critically to eliminate barriers to groups protected by human rights laws and to promote their inclusion. Think about both the policy’s effect on protected groups based on its words and the potential consequences when the policy is actually applied to those groups. Change existing policies to address problems and create new policies that could help advance your diversity and inclusion objective. Key policies to cover in your review include hiring, workplace flexibility, dress code, diversity, and respect-in-the-workplace policies. In your review, consider the following:
Direct and indirect discrimination
Human rights laws prohibit both direct discrimination (for example, a “no women” rule) and indirect discrimination (for example, the effect of a “no hats” rule on those whose religion requires they wear a hijab). Indirect discrimination reflects the law’s focus on the effect, rather than the intent, to discriminate, and can be difficult to identify. Employers must think hard about how a workplace rule, policy, or practice, or how one is applied, affects employees in non-obvious ways.
Gender-neutral language
Ensure policy language is gender neutral. For example, instead of “he or she,” use non-binary pronouns such as “they/them” or consider more general terms such as “employees”; instead of “salesman,” use “sales representative.”
Employee feedback
Consider feedback about policies with an open mind, and take action accordingly: does the policy have an effect that isn’t obvious on its face, but is adverse in practice? Is the requirement reasonably and genuinely connected to the job in a tangible sense? Is there a way to change or modify it to address the issue the employee(s) has raised?
02 | Training
Training is critical, both for the employees to whom the policies apply and for the managers and supervisors who enforce them. An organization that wants to be diverse and inclusive must ensure its managers and supervisors understand that goal and can support it.
External training
Customized, external training by professionals with expertise in diversity and inclusion can be an effective way to help ensure the employer understands and meets its legal obligations.
Application
To support diversity and inclusion, managers and supervisors must understand both the policy on its face and, given the risk of indirect discrimination, how to apply it.
Accommodation flags
Train managers and supervisors to watch for and recognize a need for accommodation and how to respond. An employer’s duty to accommodate an employee under human rights laws is triggered when an employee informs the employer of the need or when the employer ought to have reasonably known of it. Early identification and resolution of such needs protects the employer from potential discrimination claims and marks the employer as genuinely committed to an inclusive workplace.
03 | Corporate governance practices
Governance practices can play an important role in creating a diverse and inclusive workplace. Make workplace diversity and inclusion a corporate governance priority. Have a board member or committee take it on as a project and allocate the necessary resources to do the project well. Consider the following:
Board composition
A diverse and inclusive board composition is beneficial in itself and sets the tone for the organization.
Corporate strategy
The board doesn’t manage the daily operations of organization, but it does hold those that do accountable. The board can set the expectation that management weave diversity and inclusion initiatives into the corporate strategy.
Performance Measurement
Develop specific metrics to assess your organization’s diversity and inclusion performance. Some organizations are legally mandated to measure and report diversity metrics in their leadership. Data suggests that those companies that implement key mechanisms—such as adopting board diversity targets, a diversity policy, and some form of board renewal mechanism—achieve more success. Consider implementing those mechanisms to advance your diversity and inclusion objectives.
To discuss this or any other legal issue, contact any member of McInnes Cooper’s Labour & Employment Law Team. Read more McInnes Cooper Legal Publications and subscribe to receive those relevant to your business.
This article is information only; it is not legal advice. McInnes Cooper excludes all liability for anything contained in or any use of this article. © McInnes Cooper, 2021. All rights reserved.
Andrea Williams
