Workplace Investigations, Civil Rights Audits & DEI Practices Advice

Akin’s workplace investigations, civil rights audits, targeted DEI practices reviews & counseling team has considerable skill and experience conducting timely and comprehensive high-stakes internal investigations; managing such investigations as outside counsel; and conducting regional and nationwide internal practices reviews related to systemic discrimination concerns, such as civil rights audits, pay equity reviews, DEI practices reviews, and statistical analyses of hiring, promotion and other employment practices.

We also counsel clients on risk mitigation tactics when implementing DEI initiatives, both to avoid claims of “reverse” discrimination or problematic affirmative action efforts and to protect against discoverable self-critical materials that could be used against the company in litigation. We collaborate with our clients throughout discrimination and harassment investigations, civil rights reviews and audits, and DEI initiatives and related projects to provide thoughtful advice on how to successfully navigate the range of complex issues that often arise in this context.

Our Team

Our workplace investigation team has the right combination of experience, skill and judgment to handle all types of workplace complaints and investigations, including allegations of systemic discrimination that require complex statistical analyses of hiring, promotion and pay practices. In addition to conducting investigations, we have directed and managed internal investigators as outside counsel, working in close partnership with the company’s internal investigation team through the process, including the preparation of reports, formulating recommendations and providing strategic advice.

Several of our team members came from government where they represented the pursued employers for unlawful employment discrimination. As a result, our team has worked on both sides of the employment relationship, which adds credibility to the fact that Akin’s investigation team will conduct a fair and impartial investigation that truly gets to the bottom of what happened, including the material fact findings necessary to support the investigation’s conclusions.

Internal Workplace Investigations

Workplace investigations must be handled carefully and with a keen focus on the legal, reputational and operational concerns that often flow from such investigations. Inadvertent missteps, such as failing to promptly commence an investigation, failing to thoroughly examine available evidence or showing bias or favoritism toward one party or another, can result in costly litigation and adverse publicity.

The team has deep experience in all of the nuanced issues that present challenges in workplace investigations, including:

• Issues relating to privilege, when to waive privilege and how to conduct the investigation with an eye toward the possibility that privilege will be waived.
• Determining the appropriate scope of the investigation, particularly with wide-ranging allegations.
• Weighing different sources of information and supporting all fact-findings with credible evidence.
• When it is advisable to prepare detailed investigatory findings and when a client would be better served by a more limited written report or no report at all.
• Ensuring all parties feel as though they have been treated fairly and respectfully, and have been given a full and fair opportunity to present their story and evidence to a neutral investigator.
• Recommending remedial actions and what should be communicated about the outcome of the investigation, particularly to the complainant and the accused.
• Navigating media and public relations issues, particularly where investigations involve public or high-profile figures.

Civil Rights Audits

Akin has conducted numerous audits and reviews to help clients identify and address potential gaps or barriers that could be negatively impacting the experiences of women and minority groups within the relevant community. Asking the necessary questions; efficiently sorting through information; evaluating existing workplace policies and practices; and recommending changes and improvements, we partner with our clients to gather relevant data and information with minimal interruption to their business.

Our civil rights audits are usually conducted in phases, tailored to the specific circumstances that led to the audit. A typical civil rights audit includes reviewing relevant policies and procedures to ensure a thorough understanding of the “current state”; analyzing relevant demographic and benchmark data, with the assistance of an expert where necessary; reviewing a meaningful sample of internal civil rights complaints from the relevant population to assess the nature of the complaints and how they were handled; conducting an online “culture” survey, possibly through anonymous focus groups with a third-party vendor to gather perceptions and experiences from a representative sample of stakeholders; developing preliminary findings, conclusions and recommendations for client discussion and feedback regarding feasibility; and finalizing a report with recommendations that are specific, concrete and actionable based on client input.

Targeted DEI Practices Reviews & Counseling

Companies—both large and small, regardless of industry—are receiving demands from regulators and stakeholders about their diversity, equity & inclusion efforts, both to determine whether companies are doing enough to improve diversity and to accuse companies of violating anti-discrimination laws in the name of diversity. 

In the past, many companies have been eager to share their commitment to “DEI” and chose to disclose detailed information about their workforce demographics and programs to improve diverse representations, such as diversity focused internships, sponsorships, or leadership development programs.  Some companies are announced aggressive goals of achieving a certain percentage of African American/Black, Latinx, and female representation across the workforce, or in their leadership ranks within a set timeframe.

Programs and initiatives designed to increase the representation of women and minorities in the workforce must comply with antidiscrimination laws, which protect Caucasian and male employees and applicants just as they do minorities and women.  Likewise, supplier diversity programs and other contractual relationships must comply with 42 U.S.C. Section 1981, which prohibits intentional race discrimination when entering into contracts, and with respect to contractual terms and conditions.  As a result, well-intentioned efforts to promote diversity in the workforce, expand diverse supplier spend, and donate money through grants that benefit racial and ethnic minorities are exposing companies to claims of reverse discrimination.

Against this backdrop, we partner with companies to navigate the complex legal landscape involving diversity, equity & inclusion when designing effective in-house programs. Our team supports companies’ DEI efforts throughout the process of designing, creating, implementing and assessing diversity programs and initiatives, both to ensure compliance with legal standards governing diversity initiatives and affirmative action, and to recommend risk mitigation strategies along the way.

Our lawyers not only help to ensure that such initiatives comply with applicable laws, but we also advise companies on steps that can be taken to protect certain information under the attorney-client privilege. For example, communications and analyses regarding the need for diversity initiatives, the shaping of a program, the implementation of the program, progress toward goals, the effectiveness of the relevant initiatives and data measuring the success (or failure) can be self-critical and can be used offensively by plaintiffs’ attorneys in any ensuing litigation. By working with companies to shroud such internal reviews and analyses under the attorney-client privilege, we can help limit the risk that the company’s laudable efforts will not subsequently be punished.

For companies that want to implement representation goals, risk can arise when goals are set unrealistically without considering the qualified and available labor force. We help companies significantly reduce such risks with thoughtful planning on the front end, such as by conducting a privileged feasibility study so that goals are realistic and achievable without violating antidiscrimination laws.

Conversely, we also advise on equal opportunity related to recruitment, training, performance evaluations, employment tests, promotion practices, and pay equality matters, including working with labor economists to conduct privileged analyses of workforce statistics in order to advise clients about vulnerabilities to class action claims. We also help our clients by recommending creative and effective risk mitigation strategies to address any significant shortfalls and to effectively communicate publicly about the outcome of otherwise privileged compensation and workforce analyses, while preserving, to the greatest extent possible, confidentiality between attorneys and clients.

Title IX Investigations

Under the new Title IX regulations, colleges and universities are handling an increased and more complex docket of formal Title IX complaints. Our lawyers are experienced investigators who have handled the most serious allegations of sexual assault and other forms of sexual misconduct, involving both faculty and students, including minors.

In addition to serving as investigators, we are often called upon to advise colleges and universities on proper investigative procedures, coordinate with law enforcement and assist with public relations and crisis management in sensitive and reputation-altering cases.