With new legal challenges to workplace diversity, equity, and inclusion (DEI) programs, such as recent federal actions involving Nike and the state of Minnesota, many workplace leaders may feel even less inclined to express their support for workplace equality after months of attacks on DEI.
“You care about equality, but you’re scared to express that value,” says Kenji Yoshino, co-author of How Equality Wins with David Glasgow. “Let us give you a completely safe way—a bulletproof way—to express it.”
That “safe” way, Yoshino and Glasgow argue, requires expanding the cohorts served by DEI, reclaiming the idea of “merit,” and rethinking DEI to systematically remove bias rather than elevate underrepresented groups. We spoke to Yoshino and Glasgow, the directors of NYU Law’s Meltzer Center for Diversity, Inclusion, and Belonging, about the best ways to build momentum and support for DEI initiatives while avoiding legal risk. Here are excerpts from our conversation, edited for length and clarity:
You write about the shift from ‘lifting’ strategies to ‘leveling ones.’ What does that look like in practice?
Yoshino: Lifting is where you take a marginalized group, you target it, and you say, ‘I’m going to lift this group up so that it can compete on even terms.’ We think of that as a group-specific ramp up to the playing field. Leveling, in contrast, says, ‘We’re going to focus on making sure the playing field is actually level.’
David and I are actually for both strategies depending on the circumstance. Many of the group-specific ramps are very, very legally risky, and even [when] they’re not, they can be quite politically risky. But the Supreme Court is never going to say it’s illegal for an organization to level the playing field by removing unconscious bias from the system or by engaging in structured interviewing so that affinity bias…doesn’t cause [interviewers] to favor people more like themselves.
In some ways, [leveling] may be more consequential. Historically when executive teams lacked women, the solution would be to grab a qualified woman and pull her up through this lifting mechanism. That was great for that woman, and it was great for that team, but it didn’t help all of the other women who were still struggling with the performance-evaluation issue.
How can expanding the groups targeted by DEI help organizations evolve their strategy?
Yoshino: In the book, we argue that we should try to expand the circle of who counts as a DEI cohort as much as possible. For example, take gender. Boys have a lower level of educational attainment in secondary and elementary school than girls, and men die by suicide and have higher rates of depression than women. In those circumstances, it seems really foolish to say we’re just going to completely ignore the concerns of men and boys because they are the dominant group.
Instead, a physician-type approach would be to go where the pain is. Wherever there’s bias, we’re going to go there and we’re going to cure the bias because we’re against unfairness, whoever benefits from it. One of the criticisms we’ve already heard is, ‘if we start caring about men and boys, does that mean we are going to diminish our solicitude for people of color or women?’ At some level, we have to be able to walk and chew gum.
Glasgow: It means that you have a bigger tent of individuals who are for this. One of the biggest causes of friction [with DEI programs] is the zero-sum-game mentality. [Expanding the circle] is a very useful way of saying that DEI serves the entire workplace. There’s also legal reasons for doing it. If you focus on socioeconomic status or first-generation status as a core cohort in your programs, for example, there’s no protected class that you’re trampling on under the law by doing that.
How can supporters of DEI reclaim the idea of merit?
Glasgow: One of the biggest and most effective cudgels that the opponents of DEI have used against it is to deploy the terms ‘merit’ and ‘meritocracy’ and to suggest that equality work is somehow at odds with merit. That gets it exactly wrong. A major reason we need diversity and inclusion initiatives is to overcome a very long history of not assessing people based on their merit, and using things like racism or sexism or homophobia or nepotism to judge people. It’s really important for the community that supports the work of equality to reclaim the term merit for ourselves.
The important thing is to mend merit, not end it. All of the problems that people identify with merit are solvable. One of them is the idea that merit is subjective. The solution is not to get rid of merit, but to be vigilant about getting rid of bias in our assessments and coming up with rigorous criteria for what that merit is.
How Equality Wins is out now. Order it on Amazon or Bookshop.
For more on DEI from Charter, read Glasgow’s advice for assessing the risks and impact associated with inclusion programs and our guide to approaching DEI like a change-management issue.