As 2021 comes to a close, employers throughout the country are responding to what commentators have called the “Great Resignation.” Many workers are experiencing exhaustion, work-related stress, and burnout, and are responding by simply leaving their jobs. As reported, four million Americans quit in July 2021 alone, and that number continues to rise.[1] Employees of all backgrounds are experiencing these issues, but as this crisis continues, employers may be tempted to place Diversity, Equity and Inclusion (DE&I) efforts on the back burner. However, we suggest that businesses should do exactly the opposite, and continue their economic and social commitments to all DE&I programs and strategies. Indeed DE&I efforts have been proven to attract future candidates, and to increase retention among existing employees, which is now more important than ever before.
Business case for diversity, equity and inclusion
There is a strong business case that having a diverse workforce positively impacts a company’s revenue and profits. Companies with diverse management teams have been proven to boost revenue by 19%, and diverse companies enjoy 2.3 times more cash flow per employee. Companies that report the highest levels of racial diversity saw 15 times more sales revenue, compared to companies that report the lowest levels of such diversity among their employees. Senior executive teams have observed an 0.8% increase in earnings before interest and taxes when they have increased racial and ethnic diversity on senior executive teams by just 10%.[2] In the legal environment, a demonstrated commitment to DE&I is essential when it comes to recruiting and retaining top talent, and winning work from clients. But how does an employer recruit and actually retain diverse employees?
Recruitment: Attracting candidates There are several steps employers can take to attract diverse candidates. The first is establishing a “diversity brand.” Seventy-six percent of job seekers consider workplace diversity an important factor when considering employment opportunities, so it is important to clearly state your commitment to diversity through on your website, social media pages, and print materials.[3] Next, employers can seek out diversity-minded programs and partner with diverse student professional groups to broaden their reach. In the legal field there are numerous diverse professional associations such as the Black Law Student Association, Latinx Law Student Association and Asian Law Student Association that an employer can partner with to seek new talent. Cultivating these connections can help create a pipeline for historically disadvantaged groups.
Next, employers should consider the wording in your job postings. While job descriptions should define the role and the candidate requirements, they should be careful not to use language that could be perceived as biased. Biased wording in job descriptions has been proven to discourage diverse candidates from applying. For example, using words such as “strong, drive, headstrong, self-sufficient” have been found to deter female applicants from applying.[4] Finally, employers should reconsider the screening methods that are used when reviewing a candidate’s materials. Resumés with “African American sounding” names received 14% fewer callback interviews than “white sounding” names.[5] For example, one company has asked candidates to omit names, addresses, college names and graduation dates from their resume to reduce biases in race, gender, income and age. All applicants are referred to by a randomly assigned number until they are brought in for an interview. While this technique may not work for all companies, it may provide the groundwork to change an organization’s mindset regarding awareness of biases.
Ensuring a successful interviewing process
Employers must ensure that interviewers are fully trained, that they seek similar core information from each candidate, that they have a procedure on how to handle uninvited information regarding protected characteristics, and to make sure that notes from interviews and reference checks never relate to a protected characteristic. Employers should also take steps to construct a diverse and inclusive interview panel to demonstrate their commitment to DE&I.
In addition, interviewers must make sure that they are resisting unconscious biases, which is a social stereotype about certain groups of people that individuals form outside their own conscious awareness.
“Reverse discrimination”
Some employers are concerned that efforts toward recruiting diverse employees could result in “reserve discrimination.” The vast majority of these concerns are unfounded, as reviewing Courts have concluded that a reverse discrimination claim requires “a determination that the respondent is the ‘unusual employer’ that discriminates against a traditionally favored class.”
In order to avoid these claims, employers should consider diversity as one factor in their overall assessment of a candidate. Be cautious not to hire a diverse candidate based solely or primarily on his or her diversity. Companies should employ diversity goals rather than specific quotas or numbers.
Employee retention
Recruiting diverse employees is only half the battle. The other is retaining that talent. Women are twice as likely to leave their jobs as men, and African American and Latinx tech workers are found to be 3.5 times more likely to quit than white or Asian colleagues.[6] Employers should have formal, proactive, and targeted efforts to encourage retention, including a designated budget and formal metrics to measure success.
Employers should also commit to building an inclusive culture within their organization. This can include:

• Conducting an assessment of the inclusiveness of the current climate;
• Articulating and communicating inclusiveness standards;
• Having leaders role model and demonstrate inclusive standards; and
• Consistently reinforcing those inclusivity standards.

Whether the message comes from the CEO of a company or a manager of a one-person team, it is extremely important that the commitment to an inclusive culture be standardized and reinforced.
Equity over equality
At the end of the day, in order to grow and cultivate a diverse and inclusive environment, employers must be focused on equity rather than equality in the workplace. An equality standard that focuses on consistent, blanket rules and “treating everyone the same” likely fails to focus on unique demographic related needs. In comparison, an equity standard ensures that differing demographic needs are met through policies and practice.
Some examples of this approach include implementing diversity policies that account for cultural differences, developing employee resource groups, and hosting diversity, equity and inclusion trainings. When an employer focuses on the equity in its workplace, it will increase revenue, improve employee morale, and ultimately succeed in increasing the diversity of the workforce.[1] Workers Quitting Their Jobs Hit A Record in the U.S. in August, available at https://www.nytimes.com/2021/10/12/business/economy/workers-quitting-august.html[2] Diversity and Inclusion Workplace Survey, available at https://www.glassdoor.com/employers/blog/diversity-inclusion-workplace-survey/[3] Hunt, V., Layton, D., & Prince, S. Why Diversity Matters, McKinsey & Company, January 2015.[4] Evidence That Gendered Wording in Job Advertisements Exists and Sustains Gender Inequity (Journal of Personality and Social Psychology, July 2011, Vol 101(1), p.109-28).[5] 57 Diversity in the Workplace Statistics You Should Know, available at https://builtin.com/diversity-inclusion/diversity-in-the-workplace-statistics[6] Diversity’s Revolving Door – With 2x the Turnover, a Diversity Retention Program is Needed, available at https://www.ere.net/diversitys-revolving-door-with-2x-the-turnover-a-diversity-retention-program-is-needed/