Is DEI really 'dead'? Part two: Five strategies for Australian employers to navigate DEI backlash

Introduction

In part one we explained some of key legal and political differences between Australia and the US, including in relation to Australia’s anti-discrimination, safety and Respect@Work laws, which will impact the extent to which DEI initiatives are unwound here. We also queried the extent to which the executive orders signed by President Trump in the early days of his second presidential term may directly or indirectly impact Australian businesses, particularly those with US parent companies caught between conflicting regulatory regimes.

In part two, we provide practical guidance to employers about what to do when faced with challenges and questions about DEI and related Respect@Work initiatives, and answer the question: is affirmative action now unlawful?  We also draw on more insights from our discussion with David Glasgow, KWM alumnus and NYU Adjunct Professor of Law and Executive Director of the Meltzer Center for Diversity, Inclusion, and Belonging, a renowned expert in DEI whose career in this space has spanned both Australia and the US.

We conclude with five immediate recommended steps for Australian employers.

Few bright lines between Respect@Work, DEI and safety mitigations

As discussed in part one of this series, there is a wide spectrum of DEI initiatives, spanning parental leave and flexible work policies and benefits, committees and workplace celebrations for different groups (for example, Pride groups for LGBTIQA+ workers), through to targeted mentoring and recruitment policies.

Many of these initiatives will overlap significantly with Respect@Work programmes and safety hazard mitigations, and the Guidelines for Complying with the Positive Duty recently published by the Australian Human Rights Commission are clear that inclusive organisations in which a commitment to diversity and equality is taken seriously will be on the right track to satisfying their Respect@Work compliance obligations.^[4] The Guidelines note:

A culture of safety and respect that values and advances gender equality, diversity and inclusion is at the core of eliminating relevant unlawful conduct. It is also crucial to building trust and confidence in the systems that are in place to respond. By contrast, a permissive culture that devalues women; accepts and normalises everyday sexism, discrimination and harassment; and in which marginalised groups are excluded, creates an environment for relevant unlawful conduct to thrive.^[5]

To provide just a few examples of the overlap, the Guidelines note that compliance with the positive duty might be shown where:

• Leaders are ‘visible in their commitment to safe, respectful and inclusive workplaces that value diversity and gender equality’;^[6]
• Leaders ‘take an active interest in learning from, and supporting, relevant committees and groups, including diversity and inclusion committees or existing WHS committees’;^[7]
• Positive workplace culture is a factor in the appointment and performance framework for senior leaders: ‘For example, senior leaders could be assessed through staff survey feedback, as well as through progress towards achieving gender equality and diversity and inclusion targets;’^[8] and
• The organisation ‘prioritises gender balance and diversity in leadership teams (including the board, where applicable) … and appointing leaders and/or board members with specialist expertise in gender equality and diversity, workplace culture and/or the effective prevention and management of relevant unlawful conduct.’^[9]

However, there are also some initiatives that are arguably less directly relevant to Respect@Work and safety compliance – for instance, corporate championing of particular social justice issues.

In the wake of the rekindled DEI debate, some leading Australian businesses have publicly restated their commitment to their DEI programmes, including those that encompass broader issues and embrace a particular social justice cause.

It remains to be seen how many businesses may instead elect to revisit and perhaps narrow their approaches in light of shifting sentiment toward DEI, particularly where there is no clear link between the DEI initiative or social justice cause and that organisation’s business strategy and the priorities of its customers and other stakeholders. In all cases, adopting a values and risk-based approach to decision-making – including balancing the compliance risks associated with unwinding DEI altogether – will place Australian employers in the best position to navigate this challenging terrain.

Fundamentally, Australian businesses will need to answer these questions afresh: Who are we? What are our values, purpose and mission? Why do we do what we do? What does this mean for what we should we stop, start or continue doing?

Strategies for employers navigating resistance

Although it may be that backlash – enabled by the current DEI debate – is having its moment, experts are clear that resistance, backlash and hostility to equality initiatives can and should be anticipated, and actively managed, as an inevitable part of cycles of change over time. 

The Rio Progress Review noted:

In any cultural change process, there will be a natural resistance to change and some people feeling left out. This is a common experience in businesses that undertake any major change process, whether it is diversification, mechanisation or other change. Research indicates that there will typically be a spectrum of responses to such changes, from those who embrace the social and business case for change, to those who are sceptical, to those who resist the change, to outright backlash against the change. Evidence shows that such resistance is a sign that significant systemic change is occurring, rather than incremental tweaks.^[10]

Accordingly, employers should not be disheartened by instances of resistance to their Respect@Work or other diversity and inclusion programmes, but instead should plan and be willing to address it when it arises.

In particular, meaningful engagement with disaffected employees is a necessary element of implementing major change and addressing backlash and resistance to it. Listening to, and engaging with, employees who resist change can occur in a number of ways, and will necessarily be context-specific.^[11]

As David Glasgow told us, engaging in a real and authentic way with people is critical:

It is a human project and a hearts-and-minds project. The workplace is not cordoned off from the outside world. We need to understand what people are bringing to their workplace that leads them to have different views on what is fair. We need to understand where people are coming from and not talk down to people. No one is convinced to change their mind by being told they are bigoted. We should start from a premise of hearing how they feel and empathising, even though we may ultimately disagree with them.

The Victorian Health Promotion Foundation (VicHealth) has found that resistance may be at its strongest when existing structures are threatened, because these are long-held social norms that are being challenged.^[12] In its guide on preparing for and responding to resistance to gender equality initiatives, VicHealth notes that ‘throwing facts and information’ at those resistant to change is usually ineffective.

Instead, VicHealth suggests several key steps to manage and counter resistance, including the following:

• Don’t be surprised: Resistance is to be expected. Prepare for it. Resistance means your work advocating for equality is getting traction.
• Be willing to listen: Create spaces for diverse views and experiences to be expressed. When people can have their say and talk about their own beliefs (and biases and fears) without being shut down, they are more likely to be open to other messages.
• Focus efforts on those you can influence: Entrenched opposition won’t be convinced. Understand when to respond and when to leave it alone. Find allies and focus on the ‘moveable middle’
• Get leaders involved: Getting the senior leadership involved is pivotal to getting traction for gender equality initiatives.
• Frame, don’t shame: Framing shapes the story of gender equality. Tell real-life stories and allow personal accounts to be shared to help people connect emotionally, not just rationally, to the concepts. Note the benefits of equality to both men and women, and address myths and misinformation.^[13]

David Glasgow also advises that DEI approaches adopting a more ‘universal’ framework are typically more effective at preventing and addressing backlash:

The work we do in our research centre is to create DEI frameworks that are inclusive for all. If you focus on a framework like allyship, we ask how can people show up as allies to others in the workplace, recognising that everyone has baskets of advantage and disadvantage. For example, you may be a white man who is from a lower socioeconomic background or have a mental health issue, or a disability. You also need allies in your life and career. Maybe you’re older and experiencing age discrimination. Using these frameworks, we can all acknowledge each other and help reduce feelings of resentment.

Another DEI framework is about creating more authenticity in the workplace. Research conducted by my colleague Kenji Yoshino in collaboration with Deloitte suggests that a significant proportion of straight white men feel they have to downplay their identity to fit into the mainstream, too - 45% of straight white men felt that they had to hide parts of themselves. But compare that to 79% for black individuals, and 83% for the LGBTQ community. The point is that members of some groups experience the burden of this more heavily than others, but there is a universality there which can be powerful, and speaks to men in particular in a way that some DEI programmes do not.

Conclusion: Another swing of the pendulum?

In Australia, Commonwealth legislative efforts to address discrimination in the workplace and in other forms of public life emerged from the mid-1970s onwards - first in 1975 with the Racial Discrimination Act (Cth), followed in 1984 with the Sex Discrimination Act (Cth), next in 1992 with the Disability Discrimination Act (Cth) and finally in 2004 with the Age Discrimination Act (Cth).

From today’s vantage point, it is perhaps difficult to appreciate the controversy that attended these Bills on their introduction, in particular, the Sex Discrimination Bill. As Pru Goward, who served a term as federal Sex Discrimination Commissioner from 2001, wrote on the 20^th anniversary of the Bill:

When the Sex Discrimination Bill 1983 (Cth) was first introduced into Parliament by Labor Senator Susan Ryan, it was met with horror, caution and premonitions of the end of the world as we knew it. Conspiracy theories emerged from the most unlikely places. Senator Crichton-Browne argued that the real intention and purpose of this Act was ‘to destroy the structure, the fabric and the intrinsic role of the family unit which for centuries has been the foundation of our orderly and disciplined society and culture. Government Cabinet Ministers privately worried that the legislation was too controversial and, says Susan Ryan, encouraged her to withdraw the Bill and reintroduce it at a later date.’^[14]