For decades, companies have expressed support for the idea that their organizations should increase their demographic diversity while establishing a culture of inclusion. In practice, these firms have generally been unsuccessful. The challenge presented when attempting to match the diversity rhetoric of firms with their tangible actions has seemed perennially elusive.  There has, however, been a significant shift in the past few years.  The #MeToo movement of 2017 coupled with the Black Lives Matter movement of 2020 resulted in tangible shifts to how corporate firms approached their diversity, equity, and inclusion (“DEI”) strategies.  And because of firms’ statements and new DEI initiatives in the wake of these movements, the question, “What is the best way to improve diversity, equity, and inclusion within corporate firms?” has received increased attention.

In a symposium contribution, I add to these discussions by focusing on the traditional rationales for DEI efforts: the business case and the legal case.  The business case for diversity has tended to be rooted in the ways in which a successful DEI program might help with profitability or other business concerns.  The legal case for diversity, in contrast, tends to focus on the legal requirements and liabilities that a DEI program can help address.  The tension between the business and legal case rationales as support for DEI efforts can be found within both the halls of academia and within industry conversations.  There is disagreement as to whether the business or legal case should be the predominant view by which firms structure their diversity programs.  My article, however, suggests that firms and scholars cease disputing whether the business or legal case is the better way forward for those committed to improving diversity, equity, and inclusion within firms.

Instead, the article argues that, in addition to pursuing the business and legal cases for diversity when crafting DEI programs, firms should focus on employing insights from behavioral ethics literature that, in particular, discuss the concept of moral awareness in decision making. The behavioral ethics literature argues that how you frame a question can prompt an individual to identify the topic as one that does or does not affect morality or ethics. Importantly, utilizing a business or legal frame often does not trigger moral awareness. By utilizing insights from behavioral ethics literature, firms can better prompt decision makers to recognize that DEI questions – whether under the business or legal case for diversity – should be evaluated from an ethical perspective.

Take, for example, a firm that wants to ensure a certain level of demographic diversity when forming its internal committees.  A firm that focuses solely on the functional DEI goal of having demographically diverse committee members might robotically ensure that there is a woman on each committee.  If the firm, however, has a relatively low number of women, the result may be that a woman ends up on five committees to ensure the demographic diversity target is met, while her male counterparts are on two committees.  The DEI goal would have been met, but a disproportionate administrative burden would have been placed on one subset of the firm’s employees.

Firm leaders should set DEI goals for their programs, but they should also consider how to activate their moral awareness when entering into these strategies.  Instead of asking, “How can we create demographically diverse committees” the question would be something like, “How can we ethically create demographically diverse committees.”  A leader who was thinking about the DEI goal and about who might benefit or be burdened by the strategy used to meet this goal might recognize that the strategy the firm has set for its committees would necessarily result in the overburdening of the female employee.

My purpose is not to argue that reframing DEI as an ethical issue will fully address the longstanding and elusive structural inequalities within corporations.  Rather, I hope to encourage more nuanced conversations within firms.  DEI efforts might become more successful by encouraging those charged with their implementation to think more holistically about the problems they are attempting to solve.  One possible way to reconsider optimal approaches to DEI efforts is to analyze DEI questions through different sets of analyses. In my article, I argue that one potentially beneficial lens to consider is the insights that behavioral ethics has taught about how decision making within organizations occurs.

This piece comes to us from Professor Veronica Root Martinez at Duke University School of Law. It is based on her recent article, “Reframing the DEI Case,” available here.