Is compliance the same as diversity and inclusion? Is compliance another word for diversity? Is diversity the new compliance? Diversity and inclusion represent the proactive efforts to promote inclusiveness and respect for differences in the workplace and the educational environment. Diversity is not the new compliance. While there has been much discussion about diversity and the case for diversity has been made by researchers and scholars over the past decade or more, there has been little discourse on compliance (except Title IX) during that same timeframe.
Forms of Compliance
There are many forms of compliance. There are NCAA compliance, research compliance, health care information compliance, safety compliance, financial industry compliance, etc. Compliance in the simplest terms is the conformity to law, rule, regulation, policy or standards. Compliance for the purpose of this article is the adherence to federal laws, state laws, rules, regulations and policies which prohibit discrimination and harassment on the basis of race, color, national origin, disability, age, sex, religion, color, national origin, disability, protected veteran status and genetic information. Compliance with civil rights laws is designed to provide equal protection under the law. Equal Employment Opportunity (EEO) compliance is the adherence to the laws and policies that prohibit discrimination in the workplace or employment. Equal Employment Opportunity embodies a set of laws and policies that mandate all individuals’ rights to equal opportunity, irrespective of protected characteristics in employment. Equal opportunity extends to equal access to education, housing and public accommodations. Equal opportunity is also a civil right afforded by federal and state laws with the goals of prevention and remediation.
Equal Employment Opportunity, federal and state anti-discrimination, and harassment laws that prohibit employment discrimination cover all personnel decisions that could affect equal employment opportunities for employees or applicants. Federal nondiscrimination and anti-harassment laws include: Equal Pay Act of 1963 (EPA), Title VII of the Civil Rights Act of 1964, as amended; The Age Discrimination in Employment Act of 1967, as amended; The Equal Pay Act of 1963; Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), Sections 503 and 504 of the Rehabilitation Act of 1973 and The Americans with Disabilities Act of 1990 (Title I). Additionally, there are state laws that closely mirror federal Civil Rights and EEO laws.
Title VI and Title IX
The Department of Education’s Office of Civil Rights’ (OCR) jurisdiction is to investigate complaints involving students, parents and applicants on the basis of a violation of Title VI of the Civil Rights Act and Title IX of the Education Amendment of 1972. OCR dictates similar mandates for equal opportunity and non-discrimination and anti-harassment under Title VI and Title IX. Title VI of the Civil Rights Act protects people from discrimination based on race, color or national origin in programs or activities that receive federal financial assistance. Title IX of the Education Amendments protects people from discrimination based on sex in education programs or activities that receive federal financial assistance. Since 2011, Title IX has received increased enforcement efforts by the OCR. As a result, educational institutions have been subjected to heightened scrutiny on the handling of Title IX covered behaviors. Higher education institutions have suffered the brunt of OCR enforcement efforts with over 246 active Title IX investigations pending. Educational institutions are required to stay in compliance with Title IX of the Education Amendments of 1972; OCR has provided regulatory guidance on how institutions are to comply with Title IX through its Dear Colleague letters and resolution agreements. Institutions must be diligent in their compliance efforts since the legal landscape for Title IX compliance is ever-changing.
Executive Order 11246: Affirmative Action
Another area of compliance is with Executive Order 11246, Affirmative Action. Whereas Equal Employment Opportunity is a law to prevent and remedy discrimination and harassment, affirmative action is designed to eradicate past discrimination and provides equity by increasing educational and employment opportunities of groups that have historically suffered from discrimination, such as women and minorities. Other laws such as Section 503 of the Rehabilitation Act and the Vietnam Era Veteran Rehabilitation Reauthorization in concert with Affirmative Action similarly protect individuals with disabilities and protected veterans to ensure past discrimination is addressed. Affirmative action goes beyond the principles of EEO; Affirmative Action requires covered institutions to proactively recruit, hire, train and promote women, minorities, disabled individuals and veterans. Institutions must ensure that employment decisions meet the overall objectives of the institution while complying with Affirmative Action and Equal Employment Opportunity laws, regulations and principles.
Moreover, Affirmative Action permits educational institutions to consider race as a compelling interest when admitting students. Affirmative action in college admittance decisions has faced legal scrutiny through legal battles over the past 50 years. The most recent Supreme Court ruling on affirmative action upheld the use of race in admission decisions as a compelling interest but determined that institutions while considering race, must not solely consider race or give more weight to race in those admissions decisions. The court ruled that race can be one factor in the overall decision to admit a student, and other factors such as leadership qualities, talents and family circumstances must also be considered in admissions decisions.
Record Keeping and Reporting
Maintaining compliance requires an understanding not only of the spirit of these laws and regulations but also of the various mandated forms of record-keeping and reporting. Compliance requires knowing what information will be useful in demonstrating (after the fact) that decisions made by university employees were based solidly on proper business considerations and not on impermissible factors such as protected characteristics.
What Does Compliance Mean at NC State?
Federal and state laws require employers to provide work environments that are free from harassment and discrimination. All members of the NC State community have a responsibility to understand, respect and follow federal, state and local laws as well as all university policies and procedures. Compliance is not a new responsibility for our campus community, it is central to how we learn, work and play.
Compliance is the foundation on which diversity and inclusion stands. It represents what is minimally required and is the leverage with which diversity and inclusion operate. If an institution fails to effectively maintain and cultivate a culture of compliance, the foundation cracks and crumbles. When diversity and inclusion efforts are built on an unstable foundation, those efforts will ultimately crumble and fail. No structure can stand without a foundation. There are natural synergies between compliance, diversity and inclusion which should and can be realized. It is imperative to tend to compliance in a way that is intentional. A culture of compliance helps to ensure diversity and inclusion efforts that create a campus environment that is representative, welcoming, safe, secure and inclusive.
Robinette Kelley, Ed.M., SPHR, SHRM-SCP, ATIXA-certified Title IX Coordinator, is associate vice provost for equal opportunity and equity in the Office for Institutional Equity and Diversity.