Diversity As A Trade Secret

When we think of trade secrets, we often think of famous examples such as the Coca-Cola formula, Google’s algorithm, or McDonald’s special sauce used on the Big Mac. However, companies have increasingly made the novel argument that diversity data and strategies are protected trade secrets. This may sound like an unusual, even suspicious, legal argument. Many of the industries that dominate the economy in wealth, status, and power continue to struggle with a lack of diversity. Various stakeholders have mobilized to improve access and equity, but there is an information asymmetry that makes this pursuit daunting. When potential plaintiffs and other diversity advocates request workforce statistics and related employment information, many companies have responded with virulent attempts to maintain secrecy, including the use of trade secret protection. In this Article, I use the technology industry as an example to examine the trending legal argument of treating diversity as a trade secret. I discuss how companies can use this tactic to hide gender and race disparities and interfere with the advancement of civil rights law and workplace equity. I argue that instead of permitting companies to hide information, we should treat diversity data and strategies as public resources. This type of open model will advance the goals of equal opportunity law by raising awareness of inequalities and opportunities, motivating employers to invest in effective practices, facilitating collaboration on diversity goals, fostering innovation, and increasing accountability for action and progress

Accountability as a Debiasing Strategy: Testing the Effect of Racial Diversity in Employment Committees

Congress passed Title VII of the Civil Rights Act of 1964 with the primary goal of integrating the workforce and eliminating arbitrary bias against minorities and other groups who had been historically excluded. Yet substantial research reveals that racial bias persists and continues to limit opportunities and outcomes for racial minorities in the workplace. Because these denials of opportunity result from myriad individual hiring and promotion decisions made by vast numbers of managers, finding effective strategies to reduce the impact of bias has proven challenging. Some have proposed that a sense of accountability, or “the implicit or explicit expectation that one may be called on to justify one’s beliefs, feelings, and actions to others,” can decrease bias. This Article examines the conditions under which accountability to a committee of peers reduces racial bias and discrimination. More specifically, this Article provides the first empirical test of whether an employment committee’s racial composition influences the decision-making process. My experimental results reveal that race does in fact matter. Accountability to a racially diverse committee leads to more hiring and promotion of underrepresented minorities than does accountability to a homogeneous committee. Members of diverse committees were more likely to value diversity, acknowledge structural discrimination, and favor inclusive promotion decisions. This suggests that accountability as a debiasing strategy is more nuanced than previously theorized. If simply changing the racial composition of a committee can indeed nudge less discriminatory behavior, we can encourage these changes through voluntary organizational policies like having an NFL “Rooney Rule” for hiring committees. In addition, Title VII can be interpreted to hold employers liable under a negligence theory to encourage the types of changes that yield inclusive hires and promotions

The Social Psychology of Inclusion: How Diversity Framing Shapes Outcomes for Racial-Ethnic Minorities

Research on the efficacy of organizational diversity efforts has yielded mixed results. It remains unclear when positive or negative outcomes should be expected, and why. This article fills a gap in the sociological literature by examining critical social psychological mechanisms. In Experiment 1, I found that common diversity messaging led to increased bias towards racial minorities. In Experiment 2, I examined how alternative framing may influence these outcomes. Findings revealed that the common “business case” emphasizing profit and performance gains made decision-makers less likely to select a Black job candidate than emphasizing civil rights law. I then examined social psychological mechanisms that make civil rights framing more effective. Discussing civil rights promoted the belief that striving for diversity is morally “the right thing to do,” which mediated the promotion of a Black job candidate. Beyond theoretical contributions, findings can help organizational leaders better understand the effects of alternative diversity strategies

Breaking Down Bias: Legal Mandates vs. Corporate Interests

Bias and discrimination continue to limit opportunities and outcomes for racial minorities in American institutions in the twenty-first century. The diversity rationale, touting the broad benefits of inclusion, has become widely accepted by corporate employers, courts, and universities. At the same time, many view a focus on antidiscrimination law and the threat of legal enforcement as outmoded and ineffective. Thus, many organizations talk less in terms of the mandates of laws such as the 1964 Civil Rights Act, or a “legal case,” and more in terms of a “business case” where benefits of inclusion seem to accrue to everyone. It is easy to explain the appeal of the business case for diversity: it merges the goals of racial inclusion with business profitability and corporate interests. Antidiscrimination law, by contrast, is viewed as top down and coercive. But there is one major problem: there is little-to-no evidence that the business case for diversity actually reduces bias and promotes racial inclusion. In this Article, I present experimental research findings that for the first time test the relative efficacy of the business case rationale versus a legal case for equity and inclusion. I find that inclusion efforts grounded in antidiscrimination law, or the legal case, are the most likely to curb widely held biases and promote equitable behavior. These findings challenge emerging scholarship that suggests legal justifications for integration are no longer effective. Despite the appeal of the business case for diversity, emphasis on corporate interests actually generate negative beliefs about inclusion and more biased decision making. Civil rights law, with a deeper historical, political, and moral grounding, appears to exert a stronger normative influence. Based on these findings, this Article argues that antidiscrimination law is still needed, not only for its exogenous pressure on organizations to promote inclusion but also for its normative effect on individual values, beliefs about inequality, and behavior

Beyond the Business Case: Moving from Transactional to Transformational Inclusion

While workplace diversity is a hot topic, the extent to which the diversity management movement has effectively improved intergroup relations and reduced racial inequality remains unclear.1 Despite large investments in diversity and inclusion training and other company wide initiatives, historically excluded groups remain vastly underrepresented in leadership and the most lucrative careers, such as finance, law, and technology. This calls the efficacy of diversity, equity, and inclusion (DEI) efforts into question, particularly with respect to reducing racial inequality in the workplace. This Article explains why it is time for organizational leaders to move beyond the transactional case for diversity and instead use transformational messaging that is more likely to win both hearts and minds, change structures, and ultimately drive meaningful change. Part I explains the goals of a transactional approach and the resulting disconnect at both the individual and system levels. Part II discusses the goals of a transformational approach and offers preliminary empirical evidence that suggests it is more likely to drive inclusive action. Part III lays out a future research agenda that aims to further uncover why transformational messaging is more effective and why transactional messaging may backfire, with particular attention to social psychological mechanisms

Beyond the Business Case: Moving from Transactional to Transformational Inclusion

While workplace diversity is a hot topic, the extent to which the diversity management movement has effectively improved intergroup relations and reduced racial inequality remains unclear.1 Despite large investments in diversity and inclusion training and other company wide initiatives, historically excluded groups remain vastly underrepresented in leadership and the most lucrative careers, such as finance, law, and technology. This calls the efficacy of diversity, equity, and inclusion (DEI) efforts into question, particularly with respect to reducing racial inequality in the workplace. This Article explains why it is time for organizational leaders to move beyond the transactional case for diversity and instead use transformational messaging that is more likely to win both hearts and minds, change structures, and ultimately drive meaningful change. Part I explains the goals of a transactional approach and the resulting disconnect at both the individual and system levels. Part II discusses the goals of a transformational approach and offers preliminary empirical evidence that suggests it is more likely to drive inclusive action. Part III lays out a future research agenda that aims to further uncover why transformational messaging is more effective and why transactional messaging may backfire, with particular attention to social psychological mechanisms

Maximizing #MeToo: Intersectionality & the Movement

Although women of color experience high rates of harassment and assault, the #MeToo movement has largely left them on the margins in terms of (1) the online conversation, (2) the traditional social movement activity occurring offline, and (3) the consequential legal activity. This Article analyzes how race shapes experiences of harassment and how seemingly positive legal strides continue to fail women of color thirty years beyond Kimberlé Crenshaw’s initial framing of intersectionality theory. I discuss the weaknesses of the reform efforts and argue for more tailored strategies that take into account the ineffectiveness of our current Title VII framework and, more specifically, the continuing failure of the law to properly deal with intersectionality. This analysis and the resulting proposal demonstrate how advocates can leverage #MeToo as an opportunity to reshape law, organizations, and culture in a way that better protects all women, and particularly women of color

#MeToo as Catalyst: A Glimpse into 21st Century Activism

The Twitter hashtag #MeToo has provided an accessible medium for users to share their personal experiences and make public the prevalence of sexual harassment, assault, and violence against women. This online phenomenon, which has largely involved posting on Twitter and “retweeting” to share other’s posts has revealed crucial information about the scope and nature of sexual harassment and misconduct. More specifically, social media has served as a central forum for this unprecedented global conversation, where previously silenced voices have been amplified, supporters around the world have been united, and resistance has gained steam. This Essay discusses the #MeToo movement within the broader context of social media activism, explaining how this unique form of collective action is rapidly evolving. We offer empirical insights into the types of conversations taking place under the hashtag and the extent to which the movement is leading to broader social change. While it is unclear which changes are sustainable over time, it is clear that the hashtag #MeToo has converted an online phenomenon into tangible change, sparking legal, political, and social changes in the short run. This Essay provides data to illustrate some of these changes, which demonstrate how posting online can serve as an impetus, momentum, and legitimacy for broader movement activity and changes offline more characteristic of traditional movement strategies

The New Principle-Practice Gap: The Disconnect between Diversity Beliefs and Actions in the Workplace

Following increased calls for racial justice, many organizations have pledged to play their part in dismantling systemic racism. One common step leaders take is to invest in diversity and inclusion programs. Yet, despite organizations’ bold claims to value diversity and the investment of billions of dollars on related efforts, workplace discrimination continues to be a major factor in the lives of people of color. Additionally, existing research highlights a principle-policy gap, wherein people--particularly White Americans--espouse support for the principles of diversity, yet their support wanes for policies that address inequalities. In this survey study, we explore attitudes about organizational diversity efforts and further examine how these beliefs shape workplace decision-making. Our analysis of open-ended responses reveals a major disconnect, where individuals say diversity is important in principle, yet in practice do not take actions to further the goals of diversity and inclusion programs, a phenomenon we label the “principle-practice gap.” We use diversity ideology as the theoretical link to help explain why this subtle resistance to action might occur. We find that the principle-practice gap is more pronounced for those who view diversity as important because it improves outcomes. Conversely, those who think diversity is an important goal because of workplace inequality are more likely to take action, such as promoting a Black man. These findings help reveal which people endorsing diversity in principle are more likely to take action and which tend to be more performative and less connected to practices that counter structural inequality

APPENDIX: Board Gender Diversity: A Path to Achieving Substantive Equality in the United States

Appendix to article in William & Mary Law Review vol. 63, no. 2 (2021), Board Gender Diversity: A Path to Achieving Substantive Equality in the United States by Kimberly A. Houser and Jamillah Bowen Williams