This is officially my last day of the like Wellness journey,
the seven day kind of challenge, let's call it, from Magic Mind.
And I think I shared last time that, you know, I've already
been drinking the Magic Mind mental performance shot every
single day. So actually, I guess this is
kind of like day #14 if I'm trying to like think back.
Yeah, I think it's, I think it's day #14 and seriously, I didn't,
I actually did not have any coffee today.
I only had my Magic Mind mental performance shot.
And, you know, like at some point when you're used to like,
you know, having caffeine in the morning, like it kind of sets
you up for your day. But Magic Mind has really
replaced this for me. And it's to me, it's like a
healthier alternative too, because it's not as much
caffeine and it's, you know, it's loaded with wonderful,
amazing, healthy ingredients. And so, you know, of course,
when I think back to what I shared over these last few weeks
that as you know, a mom of twins and of course, like, it's the
winter, you can hear I've been congested in like every single
episode for the last like two months.
I've needed to just kind of like plow through things.
And magic mind is the thing that has gotten me through literally.
And I don't feel like I'm hitting a wall as much anymore.
Like I really feel like I found a lot of balance and I found
like my focus again and I was just feeling so out of focus.
So this shift in mindset and really like working with magic
mind has totally opened my eyes. And I'm really grateful that not
only that they've decided to work with me, but also that they
challenged me to drink it every single day because even though I
was doing that already, I once you're like working with someone
you like, you can't mess up, you know, So I'm like, OK, I can't
miss a day. And so now I'm basically on day
14 and I, I don't know, I just, yeah, I feel like, I think the
biggest thing is that I feel more focused.
And then like on top of that, I have the energy to match my
focus, which is great. And this is probably the first
day where I had my mental performance shot without coffee.
And it's amazing. Like I honestly don't know that
I need coffee when I have the mental performance shot.
Even though it doesn't replace it, it's still it's just like
the coffee was kind of like a crutch.
Whereas like now I'm actually starting to get focus again.
So thanks Magic Mind for my listeners who also want to
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HUMAN HR 20 at checkout. Go to magicmind.com/humanHR and
use Code Human HR 20. That's magicmind.com/human HR
with Code Human HR 20 for 48% off your first subscription or
20% off your one time purchases. Welcome to the Bringing the
Human Back to Human Resources podcast.
I'm Tracy Chernoff and I've spent my entire professional
career in HR. Each week, we'll explore the
delicate balance between people and business with the aim to
reconnect the two and create meaningful outcomes.
Listen in as I share my own experiences, challenge the
status quo, and chat with guests from various industries about
our mission to bring the human back to human resources.
Hi everyone, welcome back to the podcast.
Thank you so much for being here for another week.
This week, a long-awaited episode all about DENI.
And this is like we're recording this only a few days before this
episode publishes. So everything that you hear
today will be through as of the end of February 14th, like the
the very end of the day, hopefully assuming that nothing
changes in the next few hours. Before I really even get into
the the intro to introduce you to our guest this week who's
going to help me tremendously in talking about this very
important subject. I wanted to let you know that
actually Brian, who is our guest this week, he and I are going to
be doing a policy pulse episode. It's almost like let's call it a
series. It's we're, we're tracking for
and planning for one episode per month at least.
While a lot of policies are changing potentially or while a
lot of things are coming up. And I have to give credit to
Brian. This was his idea.
And I think it's a great one because, you know, there's a lot
to talk about. And this way if something
changes, the information that you're receiving is not super
old and we can kind of try and keep up with things, especially
considering most of you are in HR and really get a tremendous
benefit I think from being on top of or in the know with
different policies and changes and things like that.
So with that said, let me, I've already teased Brian to you, but
let me introduce you to Brian or actually reintroduce you if
you've been listening to the podcast for a number of years
now. Brian Driscoll has been on my
podcast. He was on, I think it was
episode 147 back in 2023 and he's back on because he's in my
mind, our resident attorney and support legal support, let's say
for the bringing the human back to human resources podcast, at
least for me, in my mind. So Brian Driscoll is a non
practicing lawyer, HR consultant and legal content writer.
As an HR consultant, Brian helps businesses navigate complex
workplace challenges, ensuring compliance while fostering fair
people centric workplaces. He also coaches individual
workers and job seekers, empowering them to advocate for
themselves, understanding their rights, and navigating career
transitions with confidence. On the legal content writing
side, Brian crafts authoritative, high impact
content for law firms and legal publications.
His work has been featured in major publications including
Best Lawyers, Newsweek, and Forbes, earning him recognition
as a trusted voice in workers rights, employment law, HR
compliance, and business strategy.
Brian, I am truly so grateful that you, you and I remain in
and that you were so open to coming on the podcast and
talking about DE and I and everything surrounding DE and I
with me. And I know that there are some
housekeeping items that we have, so I'm going to pass the mic to
you before we get started. Well, thank you, Tracy.
Yes, it's, it's wonderful to be back and, and yes, to keep in
touch over the years. I'm excited about the policy
polls too. I think it'll, it'll help
everybody sort of stay on top of everything that's changing as we
move through the the first few months of this, this new
administration. I would say that, yeah, right
off the bat, everything that we talked about is going to be good
general advice. But for specific questions that
any listeners may have for specific issues or guidance for
their business, that's something they need to reach out to their
employment lawyer or to an HR advisor and consultant like
myself to help give them more specific direction, more insight
onto their exact needs. So that's my little disclaimer.
Can't ever take the lawyer hat off so so I had had to give
that. Nor should you keep it on.
We need it. No, thank you for that.
And I, I'm sure that everyone appreciates the disclaimer and
that understanding. And I also kind of want to add a
little bit of an asterisk also to this disclaimer, which has
nothing to do with the legal side of things.
But rather I want everyone to really listen to this episode,
not necessarily with an open mind, but with through a lens
of, you know, objectivity. Because of course, when we talk
about topics like DENI, we rightfully impart our own
feelings and emotions because of whether we are a marginalized
group or a specific gender or age or whatever it might be,
whatever DENI means to you. And obviously we're going to
break down all of that because I'm really, that's like the
tippy top of an iceberg in terms of what diversity even is.
But really, I would just love for everyone listening to this
episode to really listen. And if you have a deeply held
belief on either side of what we would call the political
spectrum, that's fine. You can have that deeply held
belief. You do not have to be, you know,
on one side of the fence or the other in order to listen to or
appreciate this podcast. All beliefs are pretty much
welcome here. And certainly I, I really think
that if we can all come into our listening ears with a very open
mind, then we'll be able to really get a strong grasp of
what's going on, figure out the impact, what we, what we do with
some of these changes if we have to do anything.
And we're going to jump into all of this.
But I think it's a really important thing that we all
just, you know, take a breath and really work to understand
and, and truly listen to pretty much every single thing that's
going to come up on this episode.
We're not going to cover everything.
It's impossible. We'll have you here for hours
and hours and hours and hours and hours.
And you won't like us very much. So we're going to probably and
hopefully cover the most impactful or the most spoken
about aspects of some of these recent things.
I don't even know what the right term is.
Is it a thing? It's probably just a thing,
right? Because it's not necessarily in
practice yet or not. So I don't want to jump too far
ahead. Do you have anything to add to
that, Brian? I would also just add that I
want to sort of address the elephant in the room here.
And, and that is me being a white guy talking about all this
stuff. I could easily sit back and say,
you know, not my problem. But at least from my
perspective, that's why I need to be speaking up.
The, the, the folks who look like me are the ones who most
likely will benefit from any DEI rollbacks.
And so it's up to the people who are the beneficiaries of those
rollbacks to speak up and say this is not OK.
And that's, that's sort of my perspective on, on all of this.
Awesome. Thank you, Brian.
All right. So I think the the 1st place
where we have to start and this is really primarily a
conversation that's going to probably be more impactful for
US based listeners or listeners who have AUS based population or
employee population. There of course are some impacts
around the world with some, you know, US or federal government
decisions and we know that. But what we talked about today
will really be primarily focused on US decision making, US
governments, US legal practices and things like that.
So first and foremost, the the hot button topic is executive
order. Now, obviously, once President
Trump was inaugurated and like I presume every other president
preceding him, they just kind of bring up a bunch of executive
orders. They sign, usually they switch
pens. This is my very basic
understanding of an executive order.
Brian, can you help us to understand what is an executive
order? What?
What do they do? Yeah.
So I'm going to look at my notes for this because I want to make
sure we're we're specific about this stuff.
So, and this is all paraphrasing, but this comes
from the American Bar Association.
So an executive order is a directive issued by a president
to manage the operations of the federal government.
Broadly speaking, that is what an executive order is.
It's not mentioned in the US Constitution, but they are
generally considered to be an implied power of the executive
branch. So there's scope.
They are legally binding directives from the executive
branch toward federal agencies, officials in the executive
branch. They don't require approval from
Congress, which is also why some of the limitations, as I'm sure
everyone has been watching in the news, some of the
limitations of the executive orders is they cannot establish
or dissolve government agencies. That is Congress's job.
So like everything happening with USAID, sure, it can be
gutted from the inside from an executive order, but it can't
actually be dissolved without Congress deciding that's the
case. So broadly speaking, that's
that's sort of that's that's an executive order.
Thank you. It's helpful to understand.
And also for listeners who are outside of the US, they might be
like, what does all of this mean, you know, Congress versus
having a president? And maybe it's also helpful to
explain that they're, if I'm remembering correctly for my
history classes, 3 branches of government and the executive is
one of them. And that is the basically the
federal government within that branch.
Is that right? Correct.
And and technically speaking, they're Co equal branches.
So neither one acts as more of an emperor or, or, or an
authority over any other. And that's where some of these
issues are kind of getting into between Congress and, and, and
the president right now. So that's yet to be seen how all
all of that plays out. Right.
Well, this is an interesting point you make.
Some of the things that I have seen and I, I'm not looking to
jump ahead, we're going to get back on on the, the track here.
But some of the things that I've seen, especially on LinkedIn
have been conversations around the president or the presidency,
who, whomever is the president having more, more control or
more power to assert than maybe Congress, let's say, is that
like a, a blanket statement that's fair.
Is that incorrect? It's, it's nuanced.
So it I guess to, to that point, we can, we can talk about an
example that you and I have discussed previously.
We saw a LinkedIn post a few weeks ago about the, the EEO,
the Equal Employment Opportunity Act being dissolved by executive
order, like we just talked about in defining an executive order.
That's not possible. That's not something that the
president can do. And so that's sort of some of
the, the inaccuracies that unfortunately are spreading
around about, about the authority that the president
has, but also about the, the implications and what's
happening. Because if you're under, if
you're of the mindset that the the Equal Employment Opportunity
Act has been dissolved, then you as a business may be making you
as an HR employee for a business may be making inaccurate
decisions based on on that inaccurate information.
Right. Super helpful.
Thank you. And we'll probably come back to
that. Let's talk about DENI and HR and
specifically DENI within businesses.
Let's say I did an episode in 2024 when Sherm had basically
said we're not going to talk about equity anymore.
And I was like, WTF? And you know, I tried in that
episode. I haven't listened to it in a
long time, so I don't remember if I was effective or not.
But I tried in that episode to explain what diversity, what
equity and what inclusion actually mean, because a big
part of this, this is my opinion, I think, is that
there's a huge misunderstanding in what DE and I actually is.
And one of the things I believe you and I'm like looking at my
my notes here, I can't find it. But I think that you and I
talked about, is there a difference between DE and I and
affirmative action? And are people talking about DE
and I? Are they talking about
affirmative action? Are they talking about both?
And I wonder if while we're defining things, if we need to
further understand what DENI is, how it plays a role in
organizations, if at all, and what affirmative actions, what
affirmative action is, and if it plays a role in organizations,
if at all. So how do you want to start with
that? Do you want to talk about DENI
first? Sure.
And I think that's that topic. Yeah, I, I think, I think you
make a good, a good point there about how things get muddled
very easily because, yeah, affirmative action and and
DEIDEIBDEIA, any, any semblance of that, they are not the same.
So DEI is, and to be clear, has been around in a, in a corporate
setting in nomenclature for a long time.
This is not just, you know, the last three years or something.
Essentially what it is, is it's a it's, it's internal corporate
programs that prioritize not with quotas, not with, not with
any discrimination against maybe people who look like me to, to
hire historically disadvantaged people into the workforce.
It's just inclusion. It's bringing in diversity from
across the board and not disqualifying people who have
been historically disqualified from jobs because they didn't
look like me. That is, again, broadly
speaking, because every corporation can have a slightly
different DEI policy. It's up to them how they want to
do it. DEIDEI by itself is not
inherently an illegal policy. If you have quotas, if you say
we need to hide for every, for every 10 hires, seven of them
need to be, need to be minorities.
And, and you know, maybe you, maybe you even go further and,
and, and state exactly what those minorities need to be.
That is potentially illegal. But simply having ADEI program,
a program that says we are going to prioritize in our business.
We are going to prioritize the inclusion and and the hiring of
people from any background. We are not going to exclude
people because they don't fit a certain mold that that we have
stuck in our heads. That again, broadly speaking is
is what DEI is at the at the private corporation level.
Amazing, really helpful. And actually, I was thinking as
you were sharing about this misunderstanding, and it's so
interesting to me, you already mentioned the word nuance, which
will probably say it's like if I had a dollar for every time
something was nuanced in the United States, but obviously
making levity of, you know, making light of something very
serious. Like what's so interesting to
me, I always say this, more than one thing can be true at once.
There's misunderstanding on both sides of the DEI argument.
There's misunderstanding from those who are quote UN quote
against D and I whatever that means, because I don't think
that people who say they're against D and I really
understand what it is and that's OK.
But you know, there's that like, Oh my gosh, we're going to be
shut out of jobs and opportunities because now we're
the bad guys. I'm really like summarizing this
very generally. I don't mean to offend anyone.
If I am, I'm sorry. And then on the other side of
the argument, people who are like love DE and I, we need it
everywhere, right? They might also have a
misunderstanding of what DENI is.
And that's also OK because as things evolve, and to your
point, D and I has been around for a very long time.
You know, we're talking about programmatic approaches to
organizational development and employee experience.
We're talking about HR and as long as I've been in the
workforce, I don't ever recall quotas for certain groups,
either minorities or otherwise. And I think that's where like
the one side that, you know, there's that belief that that's
what's happening. And then again, on the other
side of, you know, the, the pro, let's say pro DNI versus anti
DNI, the pro DNI argument is also sometimes convoluted
because I think sometimes people outside of HR think that there
should be quotas. And you know, this is where you
see almost like the horseshoe effect in anything, but
especially on the political spectrum where everyone's kind
of talking about the same kind of stuff, but not using the same
dialect. And this is where I think like
defining things can really help us to understand well, what is
my deeply held belief like the the audience knows that DE and I
is important to me because as an HR person, I believe that a
diversity in thought and experience and industry and all
of that and race, religion and creed.
And it brings unique perspective and equity, ensures that people
all have the, you know, an equitable approach to
opportunities and inclusion ensures that people are actually
at the table to have or to be afforded those opportunities.
And this is where it's like, OK, if we take away, this is where
it's like, how do we unveil our own emotions around things that
are deeply impactful to people in at least in their, their
mind, body and spirit. And so with that understanding
that there it is OK to have a misunderstanding of DE and I,
regardless of what side you're on.
And if you're watching the video, you're seeing me do a lot
of left and right here. But it's like, this is how I'm
representing the different sides.
How does DE and I then, now we have this understanding of the
programmatic approach that DE and I is and has on
organizations and has been around for a long time.
How does that differ from something like affirmative
action? And where do we see affirmative
action today? So I do want to address 1 one
thing that you said and and that is sort of the the often times
unintentional misunderstanding of what DEI is.
It is not in any way the discrimination against white
men. It is not in any way the hiring
of unqualified people, overqualified people, because
the unqualified person happens to be a minority.
That is not what DEI is. In fact, I could make make the
argument and provide many examples for people who look
like me, who've been hired for positions and are not qualified,
but are hired because they look like me.
I think that when when comparing affirmative action to DE, I, I
think it's important to also just state unequivocally that
DEI is not a government mandated, government instituted
government policy of any kind. Affirmative action is.
So again, I'm going to look at my notes here just to make sure
we're being specific. Affirmative action, again,
broadly speaking, refers to policies and practices designed
often times by the government to help address historical and
systemic disadvantages to certain underrepresented groups
in the workplace. It's, it is a, it's more of a
policy driven focus than it is A, and a, a corporate
initiative. If, if that's a clear enough
distinction. I think DEI is more about
cultural transformation and making the workplace look like
the neighborhood look like the country.
And affirmative action is a, is a way to sort of help address
some of those, some of those challenges that certain groups
in this country have, have and continue to face today.
That's really helpful. And I really like how you've
helped us to understand where the the government plays a role
in terms of like mandates or regulations or policies versus
where they don't. And I just, I really think about
D and I like any other corporate organizational focus.
It's like, OK, if you want to start offering workplace
benefits or perks, it's you know, you, you're taking a,
you're, you're looking at DE and I, when you do that, you're
like, who's going to use this? How do we ensure it's inclusive?
So if someone can't run or walk, they can expense a workplace,
you know, a Wellness benefit, for example, for, you know,
meditation, right? Like the DE and I is infused in
so many things and it has nothing to do with the
government. Now what I want to ask you
specifically is, and I've gotten this question through DMS
emails, how does one or more of these executive orders, I know
that there are dozens. How do these executive orders
actually impact people in Business Today?
What is the difference or the in the impact between the public
and the private sector or government organizations, non
government organizations? Is there an impact?
I mean, yes, there there's always some level of impact.
And to be clear, while DEI is not a government initiative or
or law so to speak, like we just talked about, there are
government agencies that do have DEI programs.
And that is to your point about executive orders, that is one of
the executive orders that was signed on January 20th to I
think it was 60 or 90 days was was the timeline provided.
Every government agency had to dissolve its DEI programs,
terminate people working under those under those programs,
employees in DEI, not those who were hired under under programs.
So the impact there initially is for the government.
Now the administration has made very clear both from executive
orders, but also from a note from the Attorney General, Pam
Bondi last week or the week before a a formal memo where she
basically put private employers on notice.
And so there's from my perspective and some of the
conversations that I'm having with with clients and other
people in this space is what do we do right?
Like these are, these may not impact us yet, but they might.
So do we need to just wait for things to settle?
Do we need to be proactive and take some steps?
And I don't think either approach is wrong.
Personally, I, I do advocate for not being reactive to some of
this stuff. I definitely suggest to clients
that we just take a minute, evaluate, evaluate your DEI
program. Let's understand, let's take a
look at it, let's audit it. Let's let's make sure that
there's no quotas in there or anything like that that are
really red flags. But otherwise, let's let's wait
because you know, as we talked about, there were numerous
executive orders signed on January 20th.
There were also numerous lawsuits brought on January
20th. So we need to wait for some of
these things. There have been stays issued in
in certain circumstances on some of the executive orders.
So we, we do just need to wait and let things settle and sort
of understand that doesn't mean that we shouldn't be prepared
for something going One Direction or another or modified
from the original executive order.
So that's where it's important to understand where your
business is. And I will make one caveat here
because we're talking we're, we're making distinctions which
is good between sort of the government and private
employers. But there, there are companies,
there are private companies that have government contracts.
And generally speaking in those in order to get those government
contracts, you agree to adhere to certain terms of the
government and those might include executive orders,
disbanding DEI programs. So for those employers, the
there might be more urgency on what do we do.
And again, I would say the same thing, audit your DEI program,
make sure that there's nothing like quotas or or anything
that's that's discriminatory within it.
And then you have to determine, here's some of the political
part. You have to determine how much
of A stance you want to take. If you're, if you're of the
mindset that DEI has been beneficial to your business,
then maybe you keep things as is and you know, you stand your
ground and you say our DEI program is entirely legal until
Congress passes a law that says you can't have DEI programs in
private companies. This is what we have.
If you're not quite of that mindset and you want to disband
your DEI program, you're well within your rights to do that.
But don't think that you have to do that even if you have federal
contractors or you have a contract with the federal
government, because as long as your DEI program is not
discriminatory. And to be clear, maybe this is
something we should have said at the beginning, discrimination in
hiring is illegal. And so this is not, there is no
discrimination happening here. That's that's I think the
ultimate point. And as long as your program
adheres to that, to that rule, to that law, then even if you
have government contracts, you technically are fine.
Does that mean you might get sued under this administration?
Yeah, you might. So that's what I that's what I
mean at the beginning when I said, you know, it's kind of a
balancing act. And talk to your people about
your specific situation to understand sort of how hard you
want to push and what you're prepared to to change within
your within your organization. Very informational and very
helpful. I have a couple questions and
these are not questions that I already know the answer to.
I just want to preface this. These are like real questions
that I have for you. I don't have them written down.
Let's say in the event that there is a company in the
private sector, we'll be very clear here with this example.
I don't know that this is true. I'm just making this up.
A company in the private sector that has quotas today and says,
OK, well, we, you know, in an effort to diversify our
workforce, we want X number of people, you know, 30% of our
population to be from this race, 51% of our population to be
female and X percentage of candidates going through the
recruitment process that are reflective of those percentages.
So 1 male versus one female at every like, you know, final
interview process. Let's just say I could, I could
see where the quotas could be well intended.
You know, if someone's like, I really want to diversify my
workforce and so I want there to be representation in the
candidate process in order to do that.
So maybe it's less about quotas at the end of the process where
you're, you know, I'm kind of asking two things here.
And this is just how complicated this topic is sometimes in my
mind. So maybe I'll break it down like
if there's a, if there's a company that's doing that, even
if they're well intended, is that, is that legal for them to
do? Like just on the surface without
having any other information, obviously, because this is like
a fake example that I'm using. Because I, I, I ask that because
even if the intentions are good, my understanding is that that's
not actually an effective way of diversifying your workforce.
Obviously you need to have representation, but that could
be grounds for being illegal in the, you know, understanding of
what is discriminatory versus what isn't, even if the
intention is to diversify. Am I, am I off base with that?
Is there? Do you think there's something
like that out there? I've definitely seen companies
with that for sure. And you're right, the the
intention can be pure, but the the result is still a violation
or potentially in this scenario a violation of the law.
I don't recommend quotas generally.
I mean, it's, I'll, I'll, I'll give an example here of, of, and
this may not even be a great example, but let's run with it.
Jury selection has to be under the Constitution, under Supreme
Court precedent, jury selection, the jury pool has to be
representative of the residents in that community.
So if you live in a community that is, say, 70% minority, and
then you have a jury pool and it's 90% white, that would be
against the law. That would not be representative
of the community. Now, to be clear, the jury
itself can be all white. It's the pool that has to be
representative of the community, not the final jury.
So. Oh.
Oh, yeah, that's interesting. Right.
OK, interesting. So that's, so that's where like
it's it, it is kind of a quasi quota in that regard.
But I, I wouldn't recommend that type of approach for companies
because like you said, quotas, quotas make it much more, much
more likely that there's discrimination happening and it
makes it puts it on the face it, it, it's right there in front of
you. And so that I just, I don't
recommend quotas. To your point, there are a
multitude of ways to have a a solid, effective DEI program
within your organization that addresses the culture, not just
having a certain number of different races on your team.
Totally. You know, with DENIA, lot of
what comes up is this concept of representation and that, you
know, let's take an example of a woman going through an interview
process. If they never interview with
another woman, then it's like, well, where's the
representation? This comes up a lot.
And I think it's a good example of how DENI is in my mind at
least. And it kind of goes back to what
you said more about how a company operates in terms of
like what their culture is, what they want the employee
experience to be. And I, I feel like it's
important to note that this, as you said, this has been around
for a long time. Companies that care about having
diversity, especially in thought, because people of the
same background are not, you know, they could also have
diverse thoughts like from one another, depending on how they
grew up. I don't want to get too
convoluted in this, but companies that care about having
different voices and different people on their team and
different backgrounds have always cared about those things
and probably will always care about those things.
And we'll always care about DE and I.
And I think when we, you and I first spoke about doing this
episode, I even said, well, you know, just like any good
consumer, if you go and you do research on a product or in this
case, a company that you're considering applying for, sorry
everyone, you're probably going to hear babies crying in the
background. If I wait any longer, we might
be waiting for another 30 minutes at this point.
They're OK, They're with a caregiver, They are fine.
They just woke up cranky from a nap.
But anyway, what I was saying is that with with any good consumer
approach, you're going to do research into the job hopefully
or the company that you are applying for.
And if you see that they don't have a diversity statement, you
look at their, you know, C-Suite and you don't see representation
that you believe that that is important to you or that you
believe you should see for the company at depending on their
size or whatever, then you can and you have the ability to make
decisions for yourself. Now, obviously, that's
notwithstanding if someone is in need of a job, they might not
be, you know, first looking at that or caring about that.
They're just looking for employment.
And I get that. But at the end of the day, if
everyone's worried about seed oils, you're not going to
continue to buy stuff with seed oils, right?
And if you're concerned about DENI and you want there to be
representation that's reflective of your own background or your
preferences or whatever, you should also do that and be the
consumer that you want to be. Now with that, I, I want to know
like from your perspective and, and maybe even from what some of
your clients have shared, you've already talked about what, you
know, what happens now? Like, you know, let's hit pause.
Let's take a step back from being reactive.
What what do like, how does this impact us today?
Do we take the same approach as individuals within businesses in
terms of, you know, really just taking a, taking a pause, taking
a beat to see what sticks? That's that's kind of where I'm
at today. Now, as we all know, things are
moving rapidly and that could change by the time we end this
recording. But that is that is my approach
today. And I say that because of all
the legal challenges that are working their way through and
these are not going, these are not like, you know, big tobacco
lawsuits that are going to take 15 years to, to, to, to
finalize. These are things that the courts
are prioritizing and, and are fast tracked.
I would anticipate in the next week or two that there will be
cases before the Supreme Court already that, that they may at
least accept, they may not hear them yet, but they they may at
least accept them for, for the upcoming term.
But I think that I think that's, that's kind of my approach right
now is to start thinking about these things.
That's, you know, that's why we're having this conversation
today to start thinking about what it is, where my business
wants to go, where, where is my stance?
Where's the line for me? It do I have ADEI program?
Am I thinking about implementing one if I already have one?
Is it, is it compliant? You know, is it discriminatory
in any way? Do I need to make any changes to
it? Those are the things to start
thinking about. I don't think again in this
moment on Valentine's Day. I don't think there's any action
that needs to be taken outside of companies that maybe have
quotas because I think there's just there's so much yet to
settle and even if, even if. The the the president and the
attorney General get their way and and they want to start suing
private, private corporations, which actually has already
happened in Missouri. This past week, the Missouri AG
filed suit against a company for having quotas in their DEI
program. So even even if the AG and the
President get their way, it might be slightly different than
what they want. Now, will the courts, you know,
will they listen to the courts? That's yet to be said because
the administration has said they won't.
So, you know, that is a totally different discussion.
But I think waiting to see where things fall, waiting to see
where things settle. I, I think things are going to
going to change a little bit. But again, having those internal
discussions, having those discussions with your employment
council, having those discussions with HR consultants
and advisors inside of your HR team and figuring out, being
prepared for if this happens, then this is what we're going to
do. Not thinking about every
possible scenario that's, that's pointless.
But broadly speaking, thinking about do we need to make any
adjustments to our program? And a lot of people, a lot of
companies, here's another, another important point that I
think a lot of companies need to hear is that they should have
data on their workforce. A lot of a lot of corporations,
especially smaller businesses under 50 just don't have that
data. Now today, it's easier to pull
when you're using, you know, an online payment system for your
payroll. You can run reports pretty
easily on stuff like that. But it's it's good to have that
information not only internally to understand where you are as a
corporation in your diversity and inclusion efforts, but also
to be able to defend yourself against any potential lawsuits
from the government or the state that may want to force you to
disband your equity and inclusion.
Very. Interesting.
This actually makes me think about like states like
California that require if you have I think it's over 100
employees. Maybe I'm wrong about that.
Double check me if you're like using this as fact where you
have to submit information anonymized but information about
your workforce as part of the EEO 1.
I think it's the EEO one reporting it's so it's part of
the EEOI. Guess either it's at the state
level. That's my understanding, but
it's interesting because you know, you have to also provide
information on your contractors like these.
You know, these are all things that from an HR standpoint like
we should be doing from a compliance standpoint already is
like really understanding to your point how the employee
population breaks down. And I also, not to belabor that
point, but you know, when I think about the HR
responsibility, just fundamentally when it comes to
government decisions, anything related to compliance, anything
that could become, you know, go from an executive order to then,
you know, a congressional discussion and, and effectively
a law at some point or a new policy.
There is a responsibility on those of us who manage or
mitigate compliance to really understand what's going on.
And also to be a part of the solution and I say that because
I think there we have to siphon out some of the noise.
When you mentioned it at the top of this recording that there we
saw from a few people already, HR thought leaders, very well
respected leaders in general on LinkedIn and other places
talking about things that are not accurate, like the
dissolution of the EEO Act, which is just not what's at
least hopefully not what's happening.
And there's a responsibility that we all have.
I have especially this responsibility as having a
podcast and talking into the ether.
You know, every week you have to either you have to say, Hey,
Fact Check me, or you have to provide resources, I should say
and, or, and or you need to not spread information that isn't
categorically true. Because what happens is then the
noise that is already, I want to say deafening, but in a way it's
just like there's just so much, it can be very overwhelming.
And what ends up happening is that that noise translates to
fear. And I just don't subscribe to a
fear based reaction. It's like, OK, what is happening
here? Like everyone was like messaging
me. Are you going to talk about DNA?
I'm like, let's all just relax for a moment.
Let's figure out what it is that we have to talk about, which is
why you're here today because there's so much we can't.
It's just so counterproductive to, you know, raise up our arms
and be reactive and be afraid because all that does is we then
like we're doom scrolling and we're like, Oh my gosh, this
person said this is happening. This person said that all of my
rights are going away. This person said the EEO Act is
dissolving. And what ends up happening is
we're only, we know how social media works.
We only then end up getting our own information that could also
still be false. And so there's a responsibility
that we have as thought leaders, as people who put information
out there to just like make sure that it's either accurate in
that moment or that it's reflective as a, as an opinion
or as it, as a, you know, someone's own fear.
And so with that diatribe that I've just shared, taking a step
off of my soapbox for a moment, what do you say to someone or to
people who are afraid presently, who are afraid that they are
losing their rights in turn, like especially those who are
part of marginalized groups, what do you say to them, to
people who are afraid, to people who worry that they are now
going to be, you know, regressed in terms of their place within
organizations and within their career?
Like what do you say to the fear?
I want to step on your soapbox for a second because.
Push it toward you. The the word you just used and
used a minute ago in your in your diatribe.
Yeah, this, this will be a political statement.
I and if my politics weren't clear already, here they are.
Fear is the point. This administration wants to put
fear in people they see as other, they see as illegitimate.
That is the point. That is the point of so many of
these executive orders. And I don't, it's hard to know
what to say to people because it it, it is, it is fearful.
It is terrifying for some people and not everybody has the
ability to change jobs to pick up and and move to a bluer
state. You know, if if you do,
certainly go for it, you know, vote with your with your tax
dollars. Like, I think that that for some
people, they need to just hear that there are people out there
who support them and who are willing to advocate for them.
Again, to go back to something I said earlier, that's that's why
I have over the past couple of weeks tried to be so loud about
this because I feel like it's my responsibility as someone who
could potentially benefit from these executive orders and these
law changes to speak out. Not only to, to try and push
back against some of these, but also to provide that support to
these marginalized communities. To let them know that there are
people out here who, don't get me wrong, I can't walk in your
shoes. I, I can to a point, I can
empathize with you and, and what you've been through, but I will
never 100% know, but know that people like me are out there
fighting and pushing back to try and to try and reduce some of
that fear, to try and make people feel comfortable not only
in their own skin, but also at work where they can be
themselves. And I think I, I, I don't know,
I don't know how much comfort that is.
And it's, it's probably a little unfulfilling in, in a response,
but I do think that there are, there are good people out there.
There are good companies out there and even if you right now
feel stuck where you are, know that a door may open tomorrow
and there are other places that you can go I.
Mean stay that stay on that soapbox.
I, you know, I, it does make me think about, I'm this is again,
summarizing and generalizing in a way that's just take it for
what it's worth. These rollbacks, if they happen,
does. I don't believe that that means
that companies tomorrow will start to discriminate against
people. Do you think that's fair to say?
I think it's, I think it's fair to say with a disclaimer that
there will be some companies that are looking to
discriminate. There will be some companies
that want to go back to the 1950s or even the 1850s.
You know, what's so funny about that is that, you know, in the
1950s, women had their place in the world and so people thought
and yet even now they're still with, with my point here, I'm
going to, I'm going to be clear about it at the end.
Even now with D and I and other, you know, regulatory change, not
other because D and I is not regulatory, but DEI and
regulatory things and policies, women are still subjugated.
And I say that with a chuckle because my point is that I think
that there's, I always look to find inspiration for people.
This is just who I am. I don't try to make light of
serious things because I know that this is serious for many
people at many levels. So please don't mistake my, my
like, finding the bright side as like being out of touch.
That's not what's happening here.
I'm very in touch with everything.
I think I, I think this is where we as people, whatever, you
know, whatever groups we are a part of, whether we're
marginalized or we're not marginalized, this is where we
have an impact. We can you know, there, there
were times where people of certain backgrounds, races,
creeds, genders, we're not welcome in places to your point,
there are places that hope for that to return.
They probably have always felt that way and there were places
that always did the right thing. And so I think this is where
like we as individual, on an individual level and as HR
people, we have the ability to your point to be like to lend an
ear to express advocacy for a person or group.
We have the opportunity to really continue to transform
workplaces. This is like when I think about
the ethos of my podcast, I started it in 20, the fall of
2020, because I was sick and tired of scrolling on like, oh
God, I hate to say it, Clubhouse.
I used to participate in that God forsaken thing, Clubhouse.
And like LinkedIn and other social media and everyone,
especially HR leaders, OK, not everyone.
That's a blanket statement. A lot of people that I saw we're
engaging in conversations about furloughs and layoffs and COVID
from the basis of numbers and company decisions.
And I was like, is everyone delusional?
There are people at the, at the core of this, you know, And so
this is where like, if I really come back to the, the reason why
this podcast exists today, it is for all of us in HR or, and, or
outside of HR, because everyone contributes to what a workplace
is like. We have the opportunity to make
things right for people, regardless of whether a
government tells us to do it or not.
And this is like, I say the same thing with, you know, any type
of regulation, like there's a minimum wage pay more than that.
Like the regulations are important.
And I think you and I talked about this offline regulations
are really important to ensure that businesses are fair, like
just fundamentally that people are treated fairly and that
business businesses operate fairly.
Very fundamental it. It is not a playbook for
companies. Companies have to determine what
is the right thing, what is going to drive the most
engagement from people. How do I treat people with
respect and dignity and consideration?
And that to me is D and I. But that is how you ensure that
these things, you know, are not so scary because you still have
control. Now, obviously there's an
asterisk there in the event that there is a law that effects a
particular company or sector of companies or you know, as you
mentioned, if there are government contracts.
So that's notwithstanding all of that.
But we all have, we all make an impact and we all have the
opportunity to make an impact. I again, not intending to like
look at the world with rose colored glasses and make
everyone feel invalidated. Not my goal.
I just like to see the opportunity even for myself in
terms of how I influence my own company, you know, is that am I
like totally off base? No, I think I think that's
that's an important point. I will, I will suck up to you
for a second and say the the whole reason I found your
podcast was because of the tagline.
And I think I think I found it around the holidays in 2020.
So you hadn't been doing it, doing it that long, but that was
the whole reason I started listening to it.
But it's, it's, it's an important point that you make
because there's, there's a, there's a, there's often times a
disconnect between what HR used to be and what it is today.
And what it used to be was a company asset protection
division. Today, to your point, it's about
people in the corporations that prioritize their people.
You know, I've said, and I may have even said this last time I
was on your podcast, that even if you're a just a, a mean
spirited business owner and you don't care about your people,
you don't care about your employees.
You don't care if they're, if they're happy, healthy, engaged
employees. I can show you the data that
says you should because if you have healthy, healthy, happy,
engaged employees, you have productive employees that make
you more money. And if that's your ultimate goal
is to make more money and you don't care at all about your
team, you should because the end result is still what you want.
That is the best way to get there.
But there are, there are so many companies that, that are taking
the mindset shift that has happened not just over the last
four years for sure, but over the last couple of decades,
moving from HR as a, as a company asset protection
division to a true people experience, a, a people and
culture division that, that fights for better benefits.
That, you know, bridges the gap between what potentially greedy
business owners want and what employees need to be able to,
you know, provide for their, for their kids to be able to buy the
products that they're helping to make.
You know, this is this is a, this is a different approach and
part of that encompasses inclusion, diversity, bringing
together people of of all sorts of different backgrounds and
experiences, because that also helps grow a business.
When you have just a bunch of white dudes sitting in there,
they've all had pretty much the same background and, and lived
experience. But when you've got a diverse
team coming, coming to a table to solve a problem with your
market or your product or whatever it is, you're going to
have so many different, different, different approaches
and opinions and suggestions on how to go about this that it's
actually going to enrich the environment, enrich the process,
and ultimately enrich your business.
Totally Amen to all of that. And, you know, as you were
sharing this, I was like, minimum wage is like such a poor
example of how businesses can do the right thing, But parental
leave is the perfect example. FMLA is 12 measly weeks.
Like meager, meager businesses have the ability to do more.
And you're either going to find organizations that do the just
that or maybe they're not even, you know, eligible for FMLA and
they don't even offer parental leave.
That's certainly a commonality. Or you have businesses that
offer more and actually parental leave, not even talking about
maternity versus paternity. Parental leave is a perfect
example of DE and I in the workplace because sure, there is
a policy side of things in terms of regulation and federal
programming and state pay and all of that stuff.
But businesses that want a more diverse organization, I'm really
sorry for the babies in the background.
I think it's probably dinner time.
The, the, the divert the companies that want a more
diverse workforce offer better benefits like that because they
know that it's very possible that women won't really work for
them if they don't have a strong maternity leave.
And hopefully there are fathers out there who won't really want
to work for them because they don't have a strong paternity
leave. And, and you know, on the flip
side of that, when you see you like, if they're again coming
back to this, if there's a diversity statement, if you see
that there's a 16 week parental leave, I know that like for
those listeners who are not in the US, especially those in
Canada, they're, they're like 16 weeks.
That's all you get when they get like a year.
But like you know, 16 weeks is considered like a richer benefit
in the United States. And so I, I think I hope we
accomplished what we set out to accomplish in this episode.
We, you know, for me at least as the host and owner of this
podcast, I really try with every episode, with every guest to
challenge how we think and really have a deeper
understanding of how our responsibility and what we can
do about, you know, different decisions that are either made
for us or that are coming up and how we better understand
everything. So with that, Brian, do you want
to kind of share where everyone can find you and connect?
And of course, we're going to see you back again in a month
for our policy pulse, which I'm really excited about.
Yeah, absolutely. I, before I get to that, I will
say just, I want to wrap up and say just three points for, for
listeners that are sort of the key points at this point, at
this stage as of February 14th with everything that's happening
and that is to conduct a policy audit.
It's good to do this annually anyway, but do it now
specifically for any DEI and hiring policies that you have.
If you have any questions at all, seek legal guidance,
contact someone like me, an HR consultant or advisor, talk to
your internal team, figure out what steps you need to take, and
then continue, hopefully continue to foster an inclusive
culture through fairness and and equal opportunity, ensuring that
anyone and every employee that you hire feels valued and
welcomed in your organization. I think those those are the,
the, the three things that people should do right now in
preparation for a lot of the changes.
So where can you find me? My website is just my name,
Brian J driscoll.com. I spell my name with AY, not to
be confused with the acting FBI director, who is also Brian J
Driscoll. Oh my God, yeah.
Scary. When I when I Google my name,
I'm also on LinkedIn. I don't do a ton of social
media, but I, I am on LinkedIn. Brian John Driscoll is my handle
there. Amazing.
And is there a place or a resource where listeners can go
in order to have a better understanding of some of these
policies or changes that are potentially happening or where
they can get their best, you know, where can they get like
the most factual information? Yeah.
So outside of having someone you can lean on call, e-mail, text
for your specific questions. Outside of that to get general
broad updates on what's happening and possible guidance.
Again, general guidance on on how to how to move forward.
Look for employment law firms. There are some major National
Employment law firms that send out weekly newsletters focused
on employment topics. If you're in a big city,
especially in a bluer state, look at look at local employment
law firms who will also have newsletters and they will be
tailored to both the federal level, what's happening and how
your state and city might be trying to counteract some of
some of what's happening at the federal level.
Got it. Brian, thank you so much for
joining me on this episode and for coming up with this fabulous
idea of the Policy pulse. I'm really excited for our first
official series episode next month.
And I just am so grateful to to you and for your expertise
because I knew that this topic really required, you know,
really a lot of care. Like we need to understand
everything. We have to have clear
understanding of what it is that we're talking about, what the
potential impact is. And I just really am super
grateful to have you, you know, join us for this and be able to
share, you know, all of your insights.
So thank you again. Absolutely, thanks for having
me. I love coming on and having
these discussions. I enjoy it.
I do think it is to your point though, it is sometimes
difficult, especially with this topic, but it's just being
human. I think ultimately is what
people need to do. They just need to be human.
Totally Amen to that and thank you to the listeners for being
open throughout this conversation.
I know it's a lot and there's still going to be a lot to talk
about. So thank you to all of you who
made it to the bitter end here at the one hour mark.
Pretty much. Amazing.
Don't forget to rate review and subscribe wherever you're
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