The Push and Pull of Progress: Employment Attorney Michelle Phillips on the Changing DEI Landscape

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Michelle Phillips:

This DEI pull or what I call Newton's law, so for every action there's an equal and opposite reaction. So at the same time, you had all these pronouncements going on, and all of these DEI initiatives, and DEI, training, and DEI, statistics were going to be this number percentage representation of women and underrepresented groups by this date. And then a lot of DEI professionals were trying to hold the companies accountable through metrics as to what they were saying. So at the same time, there was this greater accountability. There was also this underbelly and this undercurrent of pushback from mostly conservative groups. There are certain conservative groups around the country, and their goal is to reverse all of the advantages that have occurred in the last few years.

Doug Foresta:

The Will to Change is hosted by Jennifer Brown. Jennifer is an award-winning entrepreneur, dynamic speaker, best-selling author and leadership expert on how organizations must evolve their cultures towards a new, more inclusive workplace reality. She's a passionate inclusion and equity advocate, committed to helping leaders foster healthier and therefore more productive workplaces, ultimately driving innovation and business results. Informed by nearly two decades of consulting to Fortune 500 companies, she and her team advised top companies on building cultures of belonging in times of great upheaval and uncertainty, and now onto the episode.

Hello and welcome back to The Will to Change, this is Doug Foresta. Today's episode features the return of employment attorney Michelle Phillips to the program as she discusses the current DEI landscape, and the importance of focusing on training and prevention. Michelle also talks about some of the pushback that's occurred when it comes to DEI efforts, and the legal issues that companies need to consider. All this and more, and now onto the conversation.

Jennifer Brown:

Michelle Phillips, welcome to The Will to Change.

Michelle Phillips:

Thank you for having me, Jen, it's great to be back.

Jennifer Brown:

We've known each other a long time, in various advocacy circles, you are an employment lawyer at Jackson Lewis, one of the preeminent firms that looks at the workplace, and employees and employers, and their relationship, and trends in the changing world of work. So you've been on The Will to Change before, you remember that years ago?

Michelle Phillips:

A little bit. It's weird, with the pandemic I have no sense of timing. I do have a memory of talking with you with one of my colleagues. Yes, definitely.

Jennifer Brown:

Yes, it was all a blur, and you were very busy, I know. You and I both over the last couple of years. But when we get together, we usually talk about, and I pick your brain about, what is emerging in the legal world relating to work environments, cultures of belonging, and all of the obstacles on the way to that wonderful vision that we hold, and that we wish for. And specifically where we find ourselves in 2023, after so many declarations of support and commitments were made, and so much truth was shared, and we're so much technically and theoretically smarter and more informed. I shouldn't say smarter, I should say more informed, more aware of workplace issues, that honestly you and I know predate the pandemic, and certainly George Floyd. But that peaked in those heady days, but that you've been working on for years.

So why don't you just give the audience a quick introduction to who you are, how long you've been doing this, where are you focused? And then we're going to get into a bit of a current events landscape discussion, and pick your brain, and find out what you're seeing, hearing, and get your wise advice.

Michelle Phillips:

At the risk of experiencing age discrimination, I will tell you that I have been doing this since 1988.

Jennifer Brown:

I love that you said that.

Michelle Phillips:

At various firms, and focusing on employment discrimination and harassment, and DEI measures, and how to implement measures that both educate and try and minimize discrimination in the workplace. So I view myself as a change agent from the inside out. And sometimes I'm brought in when there's a crisis, and a company's just been hit with a discrimination or a class action case. And sometimes I'm more hopefully brought in preventively, because we at my firm, and just my own personal philosophy is about prevention, about not getting to the point where we're in the crisis and we're reacting. But that we're being strategic and we're implementing employment practices that both educate and change people's behavior. Because it's not about what you think, it's about what you do. So intention is irrelevant in employment law, it's about the effect. And the effect can be measured in two ways.

There's intentional discrimination, where you single someone out for different treatment, or a group for different treatment based on a protected group, such as age, race, gender, gender identity, sexual orientation, marital status, military status, disability, religion. Those are some of the protected groups. And then there's disparate impact, which means you have a neutral policy, but the way that gets implemented is in a discriminatory fashion. And so that's where unconscious bias can come into play. You don't even know that, for example, you're not hiring underrepresented groups. But when we look at the data in a lawsuit, or just even in a climate assessment, we can see the real impact of what the company and its management is doing, even unknowingly. And so I know a lot of what you do, and a lot of what I do, is trying to uncover that and change the way people do business so that it's fair, and it's equitable, and people are valued and heard.

And people feel like it's not just that you have, for example, a sexual harassment or an anti-harassment policy, because that's great to have the policy, it's great to do the training. But if people don't actually report issues because they have a fear of retaliation, or they have reported things and it's not been handled well, then all the policies in the world aren't going to change the way business is conducted, and it's not going to change the number of lawsuits that a company gets hit with. So that's why for me, it's all about prevention, and doing training, and creating that awareness internally and externally.

Jennifer Brown:

So thank you for that. And I'm just appreciating, as I always do, you were awarded recently as a D&I Champion. And in my vote for you, I said, "What an incredible blessing to have a skilled practitioner who is also an advocate for mitigating risk, but being able to hold the fact that these systems... We all participate in these systems from different identities that we carry. Making the system better. And bettering the way that we relate to each other, the way that we protect each other, the way that we are accountable to each other."

I hear that all the time in the way that you approach this work, and I'm just so grateful, because I think you're moving the field forward overall. Not just the legal field, but you're actually moving DEI forward, which I'm very grateful for. So I think these days, you and I talked a lot about in preparing for this, the push and pull, this sort of vice that companies find themselves in 2023. The accountability is coming from all directions for some things that were said and committed to, metrics, goals, et cetera, promises, commitments in those days of the last couple of years. And things are coming home to roost in an interesting and difficult way, I think now for a lot of reasons. But I wondered if you could go into that a bit and explain, from where is the accountability coming, in what form? And what does it tell you about the moment we're in and how this issue is being looked at?

Michelle Phillips:

Yeah, that's a great question, because we always think of it as George Floyd, but of course there's any number of murders that were going on with so many different underrepresented groups. But that does mark a point in time where companies kind of stopped and really thought differently about discrimination that had been going on for many years. And I think that push came internally from employees, externally from social media, and there was this tremendous push to hold companies accountable in a different way. And so all of a sudden, companies are tweeting, and CEOs are making these broad pronouncements about, "In 2020 there's going to be no race discrimination, and we're going to increase our disability accountability." And all of that's great, I don't mean to be pejorative. But I think what happened is there was this...

We talk this pull, this DEI pull, or what I call Newton's law. So for every action, there's an equal and opposite reaction. So at the same time, you had all these pronouncements going on, and all of these DEI initiatives, and DEI training, and DEI statistics were going to be this number percentage representation of women and underrepresented groups by this date. And then a lot of DEI professionals were trying to hold the company's accountable through metrics as to what they were saying. So at the same time there was this greater accountability, there was also this underbelly and this undercurrent of pushback from mostly conservative groups. There are certain conservative groups around the country, and their goal is to reverse all of the advantages that have occurred in the last few years. And they do that in a number of different ways, they do that by bringing shareholder derivative actions. They do that by sending a letter to the head of a company, as well as to the EEOC, which is the federal agency responsible for enforcing the employment discrimination laws.

So they'll literally write to the five chair people of the EEOC, and then CC the CEO and the in-house counsel and say, "X, Y, Z company is engaged in discriminatory practices, because they're not hiring basically generally White older men." So that's that reverse discrimination, where the group that has been historically strategically advantaged is now claiming that companies are numbers driven. So they're not hiring the best qualified, they're focused too much on race and other forms of discrimination. Whether it's disability, LGBTQI, or veterans, it can't be a quota in essence. It can be an aspirational goal, but it can't be a quota. And sometimes there's even a dichotomy within the company where you might have the CEO, and the CDO, and the CHRO espousing these goals.

But the way that gets interpreted internally by the manager, if I'm the manager and I'm hearing, "Oh my God, I have to get X number of women by this date." I'm going to focus on just hiring women, which is great, except it has to be women in this instance that are the most qualified, or African-American that are the most qualified, it can't be tokenism. The race can't even be a factor in the decision, or gender a factor in the decision. So that's the internal forces, and then there's these external forces, and ultimately what's happening is you're seeing reverse class action and otherwise reverse discrimination claims being filed.

Jennifer Brown:

Did you foresee this happening, Michelle? There's a reaction, I love that, and you've been around the block. Did you think that we would be here? That a CEO could literally be simultaneously involved in two opposite cases literally, and managing both of those, with neither side happy, that's the vice.

Michelle Phillips:

Yeah, definitely. I think to a large extent the people in my firm that work in this arena were very aware that this could happen, and we advised clients along these lines. But I think what's surprising is just the sheer number of these claims. Just take this year, I don't want to... I'm trying to put a percentage, but I can think of five different cases that I've worked on in the last couple of months involving reverse discrimination, that's a lot. That starts to look like a trend.

Now, whether those claims are successful is another issue. So what happens though is just the bad PR, where does that land, these claims that are coming in? And if you think about it, it was these bold moves, and there was this public sentiment in favor of doing that. But now if the companies are going to face these reverse discrimination claims, it's going to cause them to be less bold. The pushback is going to occur even if the claims aren't successful in some ways, because the company's so concerned about reverse discrimination claims. So unfortunately, it has that effect, even if the lawsuit's not successful.

Jennifer Brown:

And in the reverse sense, not the reverse discrimination suits, but the other suits that the company is not achieving what it committed to, that's also a super bad PR.

Michelle Phillips:

That's a recent trend that we're seeing happening. Of course there's always discrimination claims, so there's reverse discrimination. If you look at the numbers, there's definitely more when we look at race and we look at gender, those are each about 30% of the claims that are filed with the EEOC. The reverse discrimination claims are not those numbers.

Jennifer Brown:

They're a fraction of it, right?

Michelle Phillips:

Yeah. There's 65, 70,000 claims filed with the EEOC every year. It was higher actually a number of years ago, but with COVID actually the number of claims came down, it used to be around 99,000. But reverse discrimination claims, if it's even in the hundreds, that would be a lot. But they get a lot of press, and it's about the impact of those claims. It's about the impact of these letters that are being written by conservative groups to CEOs and in-house legal counsel, and that has an impact on how strong the company is willing to come out.

One of the things that was great in this time is companies were implementing scholarships and internships, and really building the diversity pipeline. And not just talking about it, but actually putting money behind programs that would make that happen. And those programs were appropriately focused on race, or focused on gender, or focused on LGBTQ, and building the pipeline and creating opportunities. And now those very programs, which are so helpful, have to be expanded, they have to be opened up to all. Which in some ways can defeat the point, but it's because the law requires that you always pick the best qualified. So if you are selective in your hiring decisions or your promotion decisions, that's where the potential discrimination comes into play.

Jennifer Brown:

We used to deliver some of those programs at JBC actually, for multiple clients. We led LGBT leadership programs, that were not open to allies actually. And we led a veterans program, and an abilities program, not open to allies. And it was really such a emotional, and amazing, and unique experience for the people that went through them because they had never honestly learned in an environment that felt so psychologically safe, and that they could be really all of who they are in environments where day-to-day they're not able to do that. And it was very emotional, and very transformative, really I just saw people unlock completely who they are as a leader, what does their identity have to do with their leadership? Feeling empowered, feeling very focused, renewed, and supported. That's sort of the implications too of your company basically saying, "You're important, you matter. We're going to make this investment in you. You have not mattered in the past."

I'm not saying that, but that's the truth. We've had this broad-brush professional development approach, we've done the leadership training as if all leaders are the same, that's how it used to be. And the smarts that we have, and the wisdom that we have now, and the gifts of the last couple of years, for me personally, has been the differential investment, the specific investment, that to me you can put in the equity bucket. Equity sees the differences, sees the inequities, and then sees the playing field that everybody is coming into leading with, or not. And then looking at it and saying, "How do we differentially invest, and lift up, and do some specific targeted work to enable this talent community to grow, thrive, be noticed, be sponsored, be supported, be pulled?" Because that's one of the things that's going to change our demographics and our representation. Anyway, but I was fascinated when you and I were preparing for this that you said, "Yeah, that's not really happening anymore."

Michelle Phillips:

Unfortunately you touched upon so many important points, like psychological safety. Again, that's that whole point of if you have a policy, but no one's going to say anything. Psychological safety means I can speak up, I can say when something's off. And mentorship, I can look at people who are like-minded to me. And I know within my own firm, I act as a gay leader, as the head of OPAL, which is Out Professionals and Allies in Law, our ERG, which I founded in 2004.

People know if they have an issue, where maybe something came up where they were uncomfortable, they can come to me. And so you do need different things for different people. So if the net result of all of these claims is that we go back to... And I say it in all seriousness, whitewashing. Just having this generic approach, that's just going to make people not feel psychologically safe and heard. And so they're not going to get the tools that they need to survive and thrive in the workplace. So I hope that that retrenchment does not happen, but I'm nervous that it might. And you're saying you've seen programs that you were more involved in in the past, they're not continuing in the same manner at least.

Jennifer Brown:

Not in the same manner. Yeah, and you could argue when we've tried to do more of these kinds of programs, the pushback we've gotten from a potential client is, "That will be viewed as exclusionary." And then we go through all the things that we just said, and very rarely a company would have the vision to say, "No, this is important and we're going to push it through." But I think that's interesting, because you could also make an argument that the presence of being open to all, but being perhaps focused on one group's identity and the experience of that identity, but technically being open to all is a great opportunity to actually shore up allyship.

That there is a silver lining to being forced to change, but boy, there is just nothing as profound, and healing I think, and grounding as what I saw happen in those closed door rooms. But maybe that day is gone, at least for now. But anyway, as long as the result is accomplished means we can get at it a lot of different ways. But yeah, anyway, it's fascinating. So I appreciate your point, that the number of suits may be increasing, and sounds like they're more robustly argued or structured. Is the quality increasing of the reverse discrimination suits that are working their way through, or is it just the frequency, or is it being argued differently, I guess?

Michelle Phillips:

They're getting more creative in the information gathering that they're doing and what they're drawing from, in both filing these claims and sending these letters. So for example, they'll look at the ESG reports, they'll look at the website and statements that are made on the web. They'll look at the company's diversity page, and then they'll use the quotes that are made by different people against the company. They'll interview people, maybe someone who was denied an opportunity that's from a majority, let's say someone who's White or a male. And they'll show that they were more highly qualified, but they weren't selected for certain things. They'll also put testers in, so they'll put a tester in to apply for a job knowing that it's unlikely that they're going to be hired, because again, they don't fit the background and the criteria that the company's trying to move towards.

And then again, so there getting... I don't know if I'd say more clever, but they're looking at... That's why communication is so important, everything has to be vetted. Everything, even if you're doing training. Because for example, particularly in Florida with the anti woke legislation and the Don't Say Gay legislation, what you say in the training materials, what CEOs say, what CDOs say, all is important and makes a difference. There's always this tension between what legal says, which the legal's, "Don't do this." And CEOs, "No, we want to do this." But really what we want to do is work together, we don't want to stop communication, but we want to be more thoughtful and strategic about communication to deal with these claims that we're seeing coming in. Which I think a lot of companies were blindsided by it, they had no idea that their good faith efforts were going to be used against them in future claims.

Jennifer Brown:

You're really making me rethink of so much advice that we give, and it's really sobering because these are the tools of our trade in DEI. When I say something like, "Make sure you have a diverse candidate slate, make sure you have a diverse interviewer slate."

Michelle Phillips:

Well, those two are okay, because those aren't hiring decisions. Those are just expanding the pool of qualified applicants, those are actually really good tools, because what we're talking about is the selection decision. So the selection decision has to be the best qualified. When you think about the Rooney Rule, just make sure you have diverse candidates. But also if you think about the NFL case with Brian Flores, in that situation it was like a sham interview. They had already selected another candidate, and then they just interviewed him to say they had a diverse candidate, but they had already made their selection decisions. So that's a problem. We do want to increase the pipeline, truly. We do want to recruit, for example, at HBCUs. We do want to go to diversity career fairs. We do want to do training on unconscious bias, because we want to make managers more aware of where their biases come into play.

I myself am much more strategic, much more careful, I see all the different ways in which affinity bias might creep in, or confirmation bias, or anchoring bias. Or all these different tools that I have absolutely put in my own techniques when I'm thinking about... Or even when I'm doing an investigation, I immediately see... I'm interviewing the accused, for example, like I want to kill them just because I'm already annoyed by what the complainant has said. And then I'm like, "Okay, Michelle, this person deserves the same fairness, the same opportunity to be heard. And we have to just roll it back, slow it down, change your voice, change the facial expressions." Because again, everything should be done in an objective way as much as possible.

Jennifer Brown:

Yeah, absolutely. I appreciate you mentioning the different kinds of biases, and I know you're listening to these things and spotting all these textbook examples of what we know about, and there's a hundred kinds of bias. So it's this gift that keeps on giving, unfortunately. But you do a lot of training, and you're in these rooms over and over again, very similar to where I am too. And what are some other tweaks you've made, or changes you've made, that you might be willing to share in how you speak, or how you describe things, or terminology that you use? It probably depends where you are too, but I just want to know more about that. And I don't know how you feel about it personally. When I'm told to take the word privilege out of my slides, still today. Can you talk about it differently? Can we use another word? You know what? That's something that people really aren't ready for. I try to insist.

Michelle Phillips:

[inaudible 00:26:43]. Sorry.

Jennifer Brown:

Go ahead.

Michelle Phillips:

No, I call it diversity light. Just don't make people feel too bad, don't make them feel guilty, don't make them feel that they have to change. One of the areas where I see I can be more focused, and strategic, and targeted is when I do these one-on-one sensitivity trainings, what I refer to as bad boy and bad girl [inaudible 00:27:10]. And there I can just be blunt, and there's just so many examples where someone says something that's off. Or I had a situation where these two employees worked together a long time, and one guy is negatively referencing the politics of the other guy. So one person's Republican, one person is Democrat, but then it moves to where the White man says, "Black lives don't matter." And he says this to someone who's African-American. And if you make that comment to someone, they're going to be offended.

It's meant as an emotional punch, and it was taken that way. And then the other guy says, "Let's take it outside." And then the other guy says, "I'm going to break your jaw." So now what started as a political conversation has escalated into serious hostilities in the workplace. So in that area I think I can get into more of these issues of privilege, and more of these issues of that we don't all go through life in the same way. We're not perceived the same way, and we have to be conscious of how we talk, and the way it's going to be taken, because it's all about the impact, it's not about how you intend it. So I think that's one area where we still can be more direct. I think for when it comes to the training, I think you can without using the buzzwords of privilege or... I think one thing you could do, is you could put disclaimers on the training, that this isn't intended to... Have this disclaimer language, I can't remember specifically.

But basically it talks about that this isn't intended to make people feel guilty, but it's other verbiage that we use. So that's one thing. But I think you can get there by just talking about statistical evidence, hiring practices, numbers of lawsuits, which are going to just give that same context, but just said in a different way. Because I think now we're seeing a movement within a lot of southern states, whether it's the anti-trans legislation, which is unfortunately starting to get passed in a number of different states, whether it's Texas, or Tennessee, or Florida for example. We're seeing more of this anti-LGBTQ+ and anti-DEI legislation passing. Governor DeSantis, it's definitely part of his platform. So I do think you still do need to be mindful in your training and in what you say, that you're not running afoul of these buzzwords.

Jennifer Brown:

But do you think companies will navigate this but also stand strong because more than any other entity they know they're depending on the next generation of talent, and also on the next generation of consumers? So to not be in alignment with this sort of very strong expectation of values alignment, whether it's environmental impacts, whether, yes, the ESG impacts the values of DEI, it's really interesting to watch and see, are the commitments going to continue, they're going to get stronger?

Because that follows along the demographic changes path, that is an undeniable change. That's not fake news at all, it's inexorably going this way. And any company that's not just keeping up with it, but pivoting ahead of it is at great risk just from operational risk, innovation, competitiveness, et cetera, for talent, and for customers, and market share. So it's really this very interesting way they're going to have to have it both ways. They're going to have to keep one aspect very on this line, and then at the same time continue these commitments, but I suppose talk about them differently, communicate about them differently, to your point.

Michelle Phillips:

Yes, exactly. I think about during COVID and the rush to find a solution and a vaccine. And in my mind there's no... First of all, it's unbelievable that happened as quickly, somebody's think it should have been quicker, but it was pretty quick. And I think that only came about through innovation, through people putting aside their differences and just saying, "Look, we have a major global crisis here. And regardless of country, regardless of the language, regardless of the ethnicity, gender of the people involved, we're going to work together and come up with a solution."

So that's reality, if you don't get with the program and recognize that innovation really occurs from working together with diversity of thought and diversity of perspectives, to your point, Jen, you're just going to be behind the eight-ball and you're not going to be successful in the next generation. You're not, you're not representative of your communities. And that's really important, there's a lot of power to communities saying, "We're going to buy from X company and we're not going to buy from Y company." That we talk about the spending power of different groups, and I can see how that's impacted just in the LGBTQ+ arena. We're very loyal, who we buy from, who we don't, where we travel, all of these decisions that get made are definitely dependent on how the companies are showing up within the LGBTQ+ community.

Jennifer Brown:

Yeah, are you our ally? Company as Ally. And I have a... Maybe it's a pipe dream, but for some of us the safest place when we come out, weirdly, is not our personal domain. It might be our workplace, because there is an ERG, because there is support, because there are senior people that identify as we do, that we can see, that we can emulate, that can mentor us. That we really believe the commitment, and the words match the music, and things are aligned. I do think that's very possible. And we spend so much time in work mode, with that hat on. And to be productive and innovative, we have to feel a deeper foundation of belonging. I believe so much that when we're distracted by managing implications of our identity, and the microaggressions, and the sense of unfairness, and the extra work, we're overworking. And it makes us sick, it's toxic for us.

And speaking of, I want to bridge really quickly, we don't have a ton of time left, but into the return to office dynamics, vis-a-vis DEI. Speaking of toxic environments, I always am just mindful of all that we learned from people about what the office quote, unquote felt like. And this is workplaces were hybrid, but the office in particular. And then you've got a lot of leaders, I don't know, trying to justify expenses, I'm not sure. Collaboration is better, et cetera, et cetera, kind a requiring the return or days, whatever, when people are coming in alone, zooming all day, not seeing anybody else, commuting, enduring that. And I think I know that employers are really stuck again in this in between, I know where employees stand for sure. Anyway, but I'm curious to know, sitting here now with this push and pull, again, this tension between these different goals, and wants, and requirements in a way, particularly with employees who are just not playing ball.

But I'm so fascinated with the DEI implications of return to office that you might be seeing. And I don't know if legally there are cases around this, or it's just Michelle talking. Wait, what is this moment telling us about the workplace? And as a place that interestingly was super comfortable for some, really not comfortable for a lot of us because of all the issues we've talked about, where does the answer lie? I know it's early to ask these questions, because it's still developing, but I wonder what's your prediction and how do you understand this moment we're in?

Michelle Phillips:

I think it's similar to everything we've been talking today, which I think the theme is tension. And first of all, companies are saddled with a very expensive office. They have this huge facility and this expectation that people are going to return to work, because why would they pay these ridiculous prices for offices if people aren't going to be there? And then also I think it's a generational thing. So older generations think you need to have face time, you need to be there, you need to collaborate. Not a Zoom call, you need to physically be present, that something happens in the presence of people coming together that is different and unique than from being remote.

And then you have underrepresented groups, that just to put it lightly, we were impacted differently by COVID. And if you have people around you that are getting sick, or unfortunately dying as a result of COVID, or you feel maybe you have mental condition, or depression, anxiety, which definitely increased during COVID, we dealt with it differently. It impacted us differently, depending upon your vantage point. And so people are not rushing to come back, for a whole host of reasons. Whether it's work-life balance, whether it's that they just don't feel included despite all of the rhetoric, they don't actually feel included when they go to the workplace, that that is actually an alienating experience for some.

Yet a lot of employers that I work with want people back to work, whether it's full-time for some, or more likely a hybrid. I would say, if I'm to summarize, most employers are looking at a minimum of three days a week in the office, that seems to be the compromise that's worked out. Another interesting thing is for people with disabilities, for people with health related conditions, maybe not themselves, people they're associated with, family members for example. The excuse before used to be, "We're not going to let you work from home." But we just went through three years where everyone was working from home, so it's harder to make out the argument to force people to come back to work when they have been working all this time, mostly successfully. Some obviously are blowing things off, walking their dogs, swimming, whatever the things are, but most people are getting the job done. So it's harder to make out the case to force people to return to work in that instance.

Jennifer Brown:

Thank you for that. And then I was fascinated with the statistics around the cases of hostile work environment and harassment in the hybrid scenario. So correct me if I'm wrong, but I think there has been a growth unfortunately in the number of... Because you said harassment claims might have gone down during that time, but maybe it's a different aspect of it, but that this behavior has gone on and continued to go on in the last couple of years, which is really disturbing to me.

Michelle Phillips:

Yes. So obviously there's different statistics, so I'm quoting to you from the EEOC statistics. That's a snapshot, so that's only people who are filing claims with the federal agency. So in every jurisdiction there's a state agency that you can go to, and there's often even a city or county agency. For example, in New York there's the EEOC, then there's the New York State Division of Human Rights, that's the state, and then there's the New York City Human Rights Commission. So that's three different agency service. So I'm only telling you based on the federal, which is more countrywide trends as opposed to in a given jurisdiction. But I think your point is good, which is that unfortunately harassment is here to stay. And for example, New York State recently, I'm talking April, just came out with some guidance around sexual harassment in particular and remote work.

Whether it's Zoom bombing, whether it's Jeffrey Toobin exposing himself, or whether it's Slack messages, inappropriate, let's say racial or ethnic slurs in Slack messages where people are feeling marginalized. Or it's a WhatsApp group or team, and certain people aren't included in the group or feeling othered by what's said. I've seen a lot of race discrimination, in terms of comments that are made, people not even realizing it. So unfortunately, not just sexual harassment, which is a... Yes, that's the emphasis because that's the Harvey Weinstein situation. But the number of other types of claims, race in particular, has also expanded in this remote work environment.

If you just go back to affinity bias, "Oh, I know you, I've worked with you. We grew up in the same neighborhood, we went to the same school. We are of the same race, ethnicity, I'm going to select you." And because it's remote, I'm not selecting the person or group that I'm not as comfortable with. So on the one hand, you have people more comfortable. On the other hand, we're still seeing discrimination in selection decisions and who's getting the opportunities. So that that's an unfortunate, unintended consequence of the remote work. And the EEOC has also come up with... I know we're almost done. But the EEOC has also come up with guidance, and they also are referencing harassment based on remote work, or gig workers, or temporary workers. They've expanded harassment, both the New York State and the EEOC, to ensure that independent contractors are covered, which is a new part of the law.

Jennifer Brown:

And I think on the face of it that makes me glad to hear, because I know we've always struggled in the DEI world. Even with affinity group strategy and who to include, it's always headquarters and it doesn't include store employees, or manufacturing sites, or 1099, the protections. It has always felt to me only certain groups benefit from them. So I think that seems in my layperson's interpretation like a good thing, but wow, there's so much more data available, and that's a plus and a minus about our interactions with each other. And it's all captured and all immortalized forever. And so it seems that we need to be aware of the issues and lead differently, manage differently, document differently, have this stepped up level of hygiene and vigilance around inclusion and exclusion. And it just feels like it's such a new language for so many folks, that to your point, you just alluded that often this is unawareness of that this is actually happening, and that this now constitutes a problematic behavior.

Michelle Phillips:

Yes. It's so great always, Jen, to talk to with you.

Jennifer Brown:

I know, Michelle, thank you for joining me.

Michelle Phillips:

Thank you so much.

Jennifer Brown:

I learned so much. And everybody look up these cases, keep an eye on them. And this is yet another inflection point for how we handle ourselves, and make sure that we can find this balance that we've talked about so much today between the push and the pull, and still pursue that forward progress. And at the same time, keep ourselves, and our employees, and our leadership within the compliance that's demanded today, which is probably only going to get a little more... Or a lot more specific and robust. But Michelle, obviously I'll always give you shout out, Jackson Lewis, Michelle Phillips. A really good friend of mine, someone you can absolutely trust if you ever need to lean on. Michelle, where can folks find more information?

Michelle Phillips:

I'm on LinkedIn, just Michelle.Phillips@JacksonLewis.com. Or on Instagram, any different way. But again, thank you so much, Jen. It's really a pleasure to talk with you, and you are a tremendous advocate in the DEI space, and I'm so proud of the work you and everyone in your company do. And I love working with you, so thank you.

Jennifer Brown:

Thank you so much, Michelle. Hi, this is Jennifer. Did you know that we offer a full transcript of every podcast episode on my website over at jenniferbrownspeaks.com? You can also subscribe so that you get notified every time a new episode goes live, head over there now to read my latest thoughts on diversity, inclusion, and the future of work. And discover how we can all be champions of change by bringing our collective voices together and standing up for ourselves and each other.

Doug Foresta:

You've been listening to The Will to Change, Uncovering True Stories of Diversity and Inclusion with Jennifer Brown. If you've enjoyed the episode, please subscribe to the podcast on iTunes. To learn more about Jennifer Brown, visit jenniferbrownspeaks.com. Thank you for listening, and we'll be back next time with a new episode.