MEASURE TWICE, CUT ONCE Blueprint for Constructive Diversity, Equity, and Inclusion Initiatives

GUIDELINES FOR IMPLEMENTING • Intentional DIVERSITY, EQUITY, AND INCLUSION discrimination occurs when an employer or INITIATIVES manager targets an Most employers and HR professionals have seen employee because workplace misunderstandings or personality of their protected conflicts that have escalated into complaints characteristic. of harassment, discrimination, or retaliation. This is known as In our deeply divided political and cultural disparate treatment landscape, it is more likely than ever that external discrimination. For tensions will seep into the workplace, creating example, an employer new disagreements or exacerbating preexisting learns an employee is conflicts between coworkers. Depending on their pregnant and lays her planning and execution, diversity, equity, and off instead of a less- inclusion (DEI) efforts may either soothe these qualified employee who 1 tensions or further inflame conflicts. is not pregnant. These guidelines summarize key issues employers • Yet discrimination should consider when implementing DEI initiatives can also occur when for recruiting, interviewing, hiring, and promoting, an employer has a WRITTEN BY: as well as planning workplace trainings and policy or practice that Jennifer Divine managing complaints or conflicts that may arise applies to everyone but Naomi Haslitt in conjunction with DEI efforts. disproportionately affects Iván Resendiz Gutierrez members of a protected General discrimination principles class without having a valid business need for doing so. This is known as disparate • Federal and state laws prohibit employment impact discrimination.2 For example, an discrimination based on protected employer requires a certain level of physical characteristics such as race, sex, gender, agility for a position, which is not necessary gender identity and expression, sexual to perform the job. This could exclude many orientation, pregnancy (including childbirth, women. Similarly, an employer requirement breastfeeding, and related medical that employees be “clean shaven” could conditions), age, ancestry, color, religion, marginalize BIPOC3 employees or those creed, disability, marital status, military/ who wear beards for religious reasons. veteran status, national origin, and genetic information. 1 Blackburn v. State, 186 Wn.2d 250, 258, 375 P.3d 1076 (2016) (“Disparate treatment . . . is the most easily understood type of discrimination. The employer simply • Discrimination must be avoided in all aspects treats some people less favorably than others because of their race, color, of employment, including without limitation religion, sex, or national origin.”) (internal quotation marks and citations omitted).

hiring, termination, promotion, compensation, 2 Ricci v. DeStefano, 557 U.S. 557, 577, 129 S. Ct. 2658 (2009) (defining “disparate and workplace policies. impact” as “practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities”).

• Discrimination can be an intentional act, but it 3 Recent usage of the term “BIPOC,” shorthand for Black, Indigenous, and People does not have to be. of Color, is intended to acknowledge that not all people of color face equal levels of injustice. According to some, the term is significant in recognizing that Black and Indigenous people may suffer more harm from systemic racial injustice than other groups.

MILLER NASH GRAHAM & DUNN LLP 2020 EMPLOYMENT LAW SEMINAR | PAGE 1 SOCIAL JUSTICE & DISCRIMINATION IN THE WORKPLACE

• Reverse discrimination claims can also national origin, citizenship or immigration arise. “Reverse discrimination” means the status, honorably discharged veteran or preferential treatment of minorities in a way military status, or the presence of any sensory, that adversely affects members of a majority mental, or physical disability or the use of group. Specifically, it denotes unfair treatment a trained dog guide or service animal by a to a member of traditionally privileged group, person with a disability[.]” often in an attempt to be fair to the group of people treated unfairly in the past.4 RCW 49.60.180(3). • Treating candidates or employees differently Discrimination generally occurs—and employees is not always unlawful discrimination. can state a legal claim—when four things happen: For example, an employer can (1) the employee is a member of a protected distinguish between candidates based on class; (2) their qualifications or job performance nondiscriminatory criteria that is relevant to meet legitimate expectations for the role; (3) but the job, such as their education or experience. they suffer an “adverse employment action,” such as being demoted, terminated, passed over for Situations where discrimination may arise a promotion, or not hired at all; and (4) similarly qualified employees who are not in a protected The risk of engaging in prohibited discriminatory class are treated better. Bullen v. Sessions, 716 F. treatment exists in many aspects of the App’x 582, 583 (9th Cir. 2017) (citation omitted). employment relationship. Some examples include: (1) recruiting; (2) background investigation; (3) To be clear, “Congress enacted title VII in order hiring; (4) compensation; (5) benefits; (6) perks to improve the economic and social conditions or employee services; (7) working conditions; (8) of minorities and women by providing equality dress and appearance; (9) leave management; of opportunity in the work place.” 29 C.F.R. (10) disciplinary actions; (11) promotions, transfers, § 1608.1(b). So arguably, when Congress or demotions; (12) exercise of legal rights; (13) enacted Title VII, it was not concerned about downsizing, layoffs, or reductions in force; and discrimination against white people or other (14) termination and post-termination actions. historically preferred groups. However, nothing prevents the plain language of Title VII from being Applicable law and recent guidance from the interpreted to extend protection to individuals courts and the EEOC who may not have been in mind when the law Title VII of the Civil Rights Act of 1964 makes it was passed. And reverse discrimination lawsuits unlawful for an employer to discriminate against seem to be on the increase in the United States.5 an individual “because of such individual’s race, A recent case from Oregon is illustrative. In color, religion, sex, or national origin.” 42 U.S.C. Higuera v. City of Portland, No. 3:18-CV-1083-SI, § 2000e-2(a). Similarly, Oregon law makes it an 2020 WL 2310912, at *7 (D. Or. May 8, 2020), the unlawful employment practice for an employer to plaintiff Higuera identified as a Hispanic male but discriminate against an individual had light skin. Higuera, 2020 WL 2310912, at *1. “because of an individual’s race, color, Higuera alleged that a supervisor told him to “get religion, sex, sexual orientation, national a tan” and that a manager told him that Higuera origin, marital status or age if the individual was not hired because he was “the wrong color.” is 18 years of age or older, or because of the 2020 WL 2310912, at *4. The zone manager “also race, color, religion, sex, sexual orientation, testified that while at the City he felt ‘intense national origin, marital status or age of pressure’ to hire people of color and not to any other person with whom the individual make employment decisions based on merit.” Id. associates, or because of an individual’s Although the employer ultimately prevailed, it had juvenile record that has been expunged to file a motion to dismiss, which was denied, and pursuant to ORS 419A.260 and 419A.262.” ORS a motion for summary judgment. 659A.030(1)(a). 4 See Black’s Law Dictionary (11th ed. 2019); see also Parents Involved in Likewise, in Washington, it is an unfair practice for Cmty. Sch. v. Seattle Sch. Dist. No. 1, 149 Wn.2d 660, 684, 72 P.3d 151 (2003) an employer (defining “reverse discrimination” as “where a less qualified applicant is given advantage over a more qualified applicant”).

“[t]o discriminate against any person in 5 U.S. Equal Employment Opportunity Commission, Significant EEOC Race/ compensation or in other terms or conditions Color Cases(Covering Private and Federal Sectors), https://www.eeoc. gov/initiatives/e-race/significant-eeoc-racecolor-casescovering-private- of employment because of age, sex, marital and-federal-sectors#reverse (the EEOC lists “significant EEOC private status, sexual orientation, race, creed, color, and federal sector cases from 2003 to present” illustrating issues involving reverse discrimination).

MILLER NASH GRAHAM & DUNN LLP 2020 EMPLOYMENT LAW SEMINAR | PAGE 2 SOCIAL JUSTICE & DISCRIMINATION IN THE WORKPLACE

Diversity and inclusion trainings “(4) an individual should be discriminated against or receive adverse treatment solely or In the wake of the tragic death of George Floyd partly because of his or her race or sex; and the outcry that followed, a number of private and public employers issued statements “(5) members of one race or sex cannot and in support of racial justice and against systemic should not attempt to treat others without racism. In addition, some organizations have respect to race or sex; revamped or are in the process of evaluating their policies and diversity training initiatives with an “(6) an individual’s moral character is equity lens. necessarily determined by his or her race or sex; On September 22, 2020, President Trump issued an Executive Order (EO) titled “Executive Order “(7) an individual, by virtue of his or her on Combating Race and Sex Stereotyping.”6 race or sex, bears responsibility for actions “[T]o promote economy and efficiency in committed in the past by other members of Federal contracting, to promote unity in the the same race or sex; Federal workforce, and to combat offensive “(8) any individual should feel discomfort, and anti-American race and sex stereotyping guilt, anguish, or any other form of and scapegoating,” the EO rejects trainings psychological distress on account of his or her that address concepts such as implicit and race or sex; unconscious bias, institutional and structural racism, and privileges associated with dominant “(9) meritocracy or traits such as a hard work culture traits. According to the EO, these types of ethic are racist or sexist, or were created by a trainings promote “divisiveness in the workplace” particular race to oppress another race; or and are “contrary to the fundamental premises “(10) any other form of race or sex underpinning our Republic: that all individuals are stereotyping or any other form of race or sex created equal and should be allowed to an equal scapegoating.”7 opportunity under the law to pursue happiness and prosper based on individual merit.” If a training addresses any of the “divisive concepts,” employers should be attuned to The EO applies to the federal workforce, how the training is received/perceived by all Uniformed Service, and federal contractors, and employees and be prepared to respond to may affect the work of federal grant recipients. questions or complaints that may arise as a result While the EO has been criticized, and its of the training. continued viability is unclear, especially after the presidential election results, it is currently in effect In addition, employers should review and retain and implicates all federal contracts entered into their diversity training materials, because the U.S. after November 21, 2020. Therefore, employers Department of Justice and other federal agencies should review the EO and its impact on any have been instructed to view DEI training as upcoming or potential trainings. potential sources of a hostile-work-environment claim. Regardless of whether the EO itself survives, given its strident criticism of certain types of diversity Despite these precautions, the EO should not trainings, employers may wish to evaluate stop employers from providing compliant DEI whether the EO would exclude their trainings, trainings that cover harassment, discrimination, based on the scope of the training or the and retaliation. These trainings have been and manner in which the training addresses “divisive will continue1 to be an important and necessary concepts.” tool for employers to protect the workforce from the harms of harassment, discrimination, and The EO defines “divisive concepts” as concepts retaliation and to protect employers from liability that: for such harms. “(1) one race or sex is inherently superior to another race or sex; “(2) the United States is fundamentally racist or sexist; 6 The White House, Executive Order on Combating Race and Sex Stereotyping, Sept. 22, 2020, https://www.whitehouse.gov/presidential- “(3) an individual, by virtue of his or her race actions/executive-order-combating-race-sex-stereotyping/. or sex, is inherently racist, sexist, or oppressive, 7 The White House, Executive Order on Combating Race and Sex Stereotyping, Sept. 22, 2020, https://www.whitehouse.gov/presidential- whether consciously or unconsciously; actions/executive-order-combating-race-sex-stereotyping/.

MILLER NASH GRAHAM & DUNN LLP 2020 EMPLOYMENT LAW SEMINAR | PAGE 3 SOCIAL JUSTICE & DISCRIMINATION IN THE WORKPLACE

Best practices for designing and implementing programs work to ensure that DEI efforts effective DEI trainings include: are not isolated afterthoughts, but part of a comprehensive organizational strategy, • Hiring experienced trainers willing to invest thoughtfully considered in all aspects of employee the time and energy to tailor their training recruitment, training, talent development, and materials and presentations to the needs retention. of the employer’s particular industry and workplace, rather than simply rolling out a Implicit bias and what courts are saying about it generic “one-size-fits-all” training package; Implicit bias describes an individual’s unconscious • Reaching out broadly to diverse employee or stereotypes or associations about other people constituent groups before and after training or groups, and how these associations can sessions to get input on issues to be covered, unintentionally impact perceptions or decisions. feedback and constructive criticism on the The Kirwan Institute at the University of Ohio trainings, and suggestions for follow-up explains that implicit biases actions; “are activated involuntarily and without an • Taking the time and effort to ensure buy-in at individual’s awareness or intentional control all levels of the organization; and * * *. The implicit associations we harbor in our subconscious cause us to have feelings • Obtaining support and participation from and attitudes about other people based on top management and senior leadership to characteristics such as race, ethnicity, age, demonstrate that the employer is serious and appearance.”8 about making progress on its DEI efforts. Implicit biases develop over many years, and Experienced practitioners also recommend that are the result of personal experiences as well as employers: popular media and news images. • Make DEI trainings available and accessible Individuals do not intentionally or consciously and encourage widespread participation, but control their implicit biases. In fact, a person’s avoid mandatory attendance requirements implicit biases may very well be contrary to his because employees who are not ready to be or her stated beliefs or values. For instance, an open to trainings will rarely benefit and may individual may strongly believe in equity and poison the atmosphere for other participants; reject all notions of discrimination, yet still have • Recognize that diversity trainings by implicit biases that impact his or her day-to-day themselves will not resolve deep-rooted actions and decisions. societal inequities or magically transform Over the last few years, the term “implicit bias” workplace culture; has become part of the employer lexicon. A recent • Plan repeat trainings to build on concepts Harvard Business Review article described the introduced in prior sessions and allow implicit bias “problem”: participants to build skills necessary to “Many managers want to be more inclusive. recognize statements or actions that may be They recognize the value of inclusion and rooted in implicit or unconscious bias and to diversity and believe it’s the right thing to interrupt and correct potentially discriminatory aspire to. But they don’t know how to get situations; and there. • Understand that diversity trainings should not 1 “For the most part, managers are not given be a one-time response to a particular event, the right tools to overcome the challenges but rather part of an employer’s ongoing DEI posed by implicit biases. The workshops strategy. companies invest in typically teach them to DEI efforts may include periodic trainings in constantly check their thoughts for bias. But various formats, affinity groups or other support this demands a lot of cognitive energy, so over groups, formal or informal mentorship and time, managers go back to their old habits. sponsorship programs, expanding recruitment and pipeline programs, employee recognition, leadership training, employee satisfaction measurements, progress assessment, and 8 Kirwan Institute for the Study of Race and Ethnicity, Ohio State University, manager accountability. The most successful http://kirwaninstitute.osu.edu/research/understanding-implicit-bias/.

MILLER NASH GRAHAM & DUNN LLP 2020 EMPLOYMENT LAW SEMINAR | PAGE 4 SOCIAL JUSTICE & DISCRIMINATION IN THE WORKPLACE

“Based on our work at the Stanford Women’s any alleged hidden or implicit bias resulted Leadership Lab, helping organizations across in an environment of the kind that the Ninth many industries become more diverse and Circuit has concluded constitutes a hostile work inclusive, our research shows there are two, environment.”); White v. BNSF Ry. Co., 726 F. App’x small—but more powerful—ways managers 603, 604 (9th Cir. 2018) (noting that the plaintiff can block bias: First, by closely examining and “never explained how testimony regarding implicit broadening their definitions of success, and bias would be helpful to the jury in a disparate second, by asking what each person adds treatment case requiring evidence of intentional to their teams, what we call their “additive discrimination.”).10 contribution.” If courts are paying this much attention to “The problem is that, when hiring, evaluating, “implicit bias,” then it is incumbent on employers or promoting employees, we often measure to also recognize and address the effect implicit people against our implicit assumptions of bias has when hiring, evaluating, or promoting what talent looks like—our hidden “template of employees. But how? success.” These templates potentially favor one Review hiring, performance review, and group over others, even if members of each promotion processes group were equally likely to be successful.”9 • Emphasize objective versus subjective factors. But it is not just scholars who are writing about this topic—courts are addressing it as well. For • Encourage feedback and transparency in example, an Oregon district court recently wrote: evaluations and hiring or promotion decisions. “At the same time, issues of race are coming • Concerns about implicit bias can arise when to the fore in a similar long-overdue manner. customer or client reviews are a factor in The impacts of our shameful racial history, promotion decisions. Employees may claim pervasive implicit bias, and institutionalized that reviews are influenced by implicit racism are now part of any meaningful bias, rather than an impartial review of discussion on social or institutional performance. Make sure that third-party responsibility in America today. Norms on both implicit bias is not unintentionally seeping into fronts are in flux in dramatic ways, not just evaluations. within progressive segments of society, but across the nation as whole.” Engage in a “self audit” of hiring, assignment, and promotion decisions * * * • Look back at decisions to determine whether “It is well established that implicit bias affects implicit bias about race, age, gender, sexual almost every decision that people make. orientation, or other protected characteristics See, e.g., Justin D. Levinson et al., Judging may be impacting decisions about hiring, Implicit Bias: A National Empirical Study of assignment, and promotion in the workplace. Judicial Stereotypes, 69 Fla. L. Rev. 63, 79- 82 (Jan. 2017). I would be remiss if I failed to • Use that data to help revise protocols and acknowledge that such bias has wide-ranging procedures on hiring, assignments, or impacts on institutional processes as a whole. promotions. As important decisions are made, both on the grand scale and within the microcosm of individual situations, we must be mindful 1 of the ever-present risk of perpetuating longstanding racial injustice.” Pavel v. Univ. of Oregon, No. 6:16-CV-00819-AA, 2018 WL 1352150, at *4 (D. Or. Mar. 13, 2018), aff’d, 774 Fed. App’x. 1022 (9th Cir. 2019), cert. denied, 9 Lori Mackenzie and Shelley J. Correll, Two Powerful Ways Managers Can Curb Implicit Biases, Harvard Business Review, Oct. 1, 2018, https://hbr. 140 S. Ct. 608, 205 L. Ed. 2d 388 (2019) (emphases org/2018/10/two-powerful-ways-managers-can-curb-implicit-biases. added); see also Wilkins v. Brandman Univ., No. 10 For an extensive discussion of court cases considering the use of 3:17-cv-01099-BR, 2019 WL 3558172, at *16 (D. Or. expert testimony on implicit bias and the required factual predicate to introduce such evidence, see the Miller Nash Graham & Dunn LLP Aug. 5, 2019), appeal dismissed, 19-35703, 2020 2017 Employment Law Seminar article, Now You See It, Now You Don’t: WL 773489 (9th Cir. Feb. 4, 2020) (“Plaintiff does Recognizing and Responding to Implicit Bias, http://www.millernash. com/files/Event/1dcc0651-cbff-4f95-ae7b-1cd63fa592b7/Presentation/ not cite to evidence in the record that shows EventAttachment/6ba9f5b4-4ea6-452f-8983-2472974b9aee/ELLR%20 2017%20-%20Implicit%20Bias.pdf.

MILLER NASH GRAHAM & DUNN LLP 2020 EMPLOYMENT LAW SEMINAR | PAGE 5 SOCIAL JUSTICE & DISCRIMINATION IN THE WORKPLACE

Continue to develop and support programs and because the position requires a certain degree initiatives in the workplace to enhance diversity or certification that limits the applicant pool, and equity or is an established policy disproportionately affecting underrepresented groups? • Examine current performance-management processes to ensure that employees who are • Don’t establish numerical or percentage- female, people of color, or people in other based hiring/promotion quotas based on sex, historically underrepresented groups get race, disability, or other protected classes, recognition on matters in which they have a but do take steps to ensure that diverse role. candidates are being considered for positions. • Encourage employees who are female, • Don’t hire, promote, terminate, or demote people of color, or people in other historically based on race, age, gender, or any other underrepresented groups to seek mentors protected class. These decisions must be (those that can provide guidance) as well as based on neutral and objective criteria. sponsors (those that can help to promote), both within and outside the organization. • Encourage problem-solving to avoid KEY TAKEAWAYS misunderstandings and miscommunications, Depending on how they are planned and to prevent issues from snowballing. and executed, DEI efforts may help • Employers can work to change the stereotypes 1 to either resolve tensions or further about various groups of people by ensuring inflame conflicts in the workplace. that there are positive images of diverse people in the workplace. DEI trainings have been and will continue to be an important and Tips for avoiding discrimination claims when necessary tool for employers implementing DEI initiatives to protect the workforce from 2 the harms of harassment, • Do collect data on employee demographics discrimination, and retaliation and to identify trends regarding underrepresented to protect employers from liability. groups. Consider implementing neutral policies and/or training targeted at reversing unfavorable trends. For example, remove DEI trainings should be customized to candidate names from resumes before the workplace and part of a carefully reviewing them to avoid any unconscious bias 3 considered strategy of DEI initiatives. with regard to gender, race, national origin, or If courts are paying this much any other protected characteristic. attention to “implicit bias,” then • Do encourage continued education on implicit employers should also recognize and bias and DEI at your workplace. address the effect implicit bias has 4 when hiring, evaluating, or promoting • Do diversify recruitment and outreach efforts employees. to reach underrepresented groups. For example, hold recruiting events for students at historically black colleges and universities (also referred to as HBCUs) or for members of a women’s organization. • Do be mindful of the language used in job descriptions, marketing materials, and workplace communications in order to encourage inclusiveness. For example, use gender-neutral words and phrases. • Do recognize that imbalances in the workforce (e.g., racial or gender imbalances) do not necessarily mean that discrimination exists in your workplace. Instead, look at the reasons behind the imbalance. Is there an imbalance

MILLER NASH GRAHAM & DUNN LLP 2020 EMPLOYMENT LAW SEMINAR | PAGE 6 Equity Language Guide Governor’s Interagency Council on Health Disparities Approved December 6, 2018

Introduction

To assist state agencies with talking about issues related to equity in general and racial equity in particular, the Governor’s Interagency Council on Health Disparities (Council) is creating this Equity Language Guide. It provides guidance, standard definitions, and terms to avoid that agencies can use in the creation of reports, forms, and other written materials. This guidance is not comprehensive. It is just a first step and has a limited focus on terms that are routinely used in state government. The Council intends to review the guide annually and to update it to reflect the most current language and definitions and to continue to add further guidance to agencies. We welcome feedback—please send questions, comments, suggestions, edits, and resources to Christy Hoff at [email protected].

Glossary of Equity-Related Terms

Term (Sources) Definition Examples and Considerations Bias (1,2,3) Prejudice or preference toward a group The Implicit Association Test is a tool to over another group. Implicit or measure implicit biases related to Unconscious Bias are associations we race/ethnicity, gender, sexual hold about groups of people without orientation, age, disability, and many realizing it that affect our attitudes and other topics. actions. Explicit or Conscious Bias are biases we know we have and may use purposefully. Culture (1, 12) A set of values, beliefs, customs, Examples can include age/generation, norms, perceptions, and experiences country of origin, disability status, shared by a group of people. An education level, employment individual may identify with or belong status/profession, family/household to many different cultural groups. type, gender identity, geographic location, immigration status, income, language, literacy level, military experience, political beliefs, race/ethnicity, religion spirituality, sexual orientation, etc.

Equity Language Guide Governor’s Interagency Council on Health Disparities Approved December 6, 2018

Term (Sources) Definition Examples and Considerations Cultural Humility Approach to respectfully engaging Cultural humility is a preferred term to (4,5,6, 12) others with cultural identities different other related concepts such as cultural from your own and recognizing that no competency, cultural awareness, cultural perspective is superior to cultural sensitively, cultural another. The practice of cultural appropriateness, cultural humility acknowledges systems of responsiveness, and cultural safety. oppression and involves critical self- reflection, lifelong learning and growth, a commitment to recognizing and sharing power, and a desire to work toward institutional accountability. Discrimination (1) Unjust treatment of an individual or Examples of discrimination include: group based on their actual or per- • Ableism: Against people with ceived membership in a specific group. disabilities • Ageism: Against people based on age • Classism: Against people based on social or economic class • Heterosexism/Cisgenderism: Against people in the LGBTQ+ community • Islamaphobia: Against Muslims • Sexism: Against people based on sex Diversity (1) Similarities and differences among a Diversity is a noun meaning to be group of people based on cultural diverse. The adjective, diverse, should factors such as race/ethnicity, gender never be used to describe individuals identity, sexual orientation, disability (e.g., she is a diverse candidate). status, age, educational status, religion, geography and other Diversity in the workplace means experiences. adequate representation of different cultural groups at every level of an organization.

Equity Language Guide Governor’s Interagency Council on Health Disparities Approved December 6, 2018

Term (Sources) Definition Examples and Considerations Equity (1) Fairness and justice, focused on Providing an informational brochure to ensuring everyone has the opportunity all clients of an agency is an example of to meet their full potential. Equity equality—everyone gets the same takes into account disadvantage information in the same form. experienced by groups. Equity is Providing the same brochure in distinct from equality, which refers to multiple languages is a strategy that everyone having the same treatment promotes equity, because it takes into without accounting for differing needs account differing language needs. or circumstances. Inequity means lack of fairness or justice and describes The difference in breast cancer rates differences that result from a lack of between women and men is a access to opportunities and resources. disparity, because it is not unfair, Inequities are avoidable and different unjust, or avoidable. However, the than disparities, which are differences higher rates of breast cancer mortality that do not imply unfairness. among black women compared to white women is an inequity—it is unfair, unjust, and avoidable. Inclusion (1,7, 14) An intentional effort and sets of Inclusion builds on the assets that a actions to ensure authentic diverse workforce provides by creating participation, with a true sense of an environment of involvement and belonging and full access to respect that fosters innovation and opportunities. ideas. Intersectionality The interaction of cultures and Intersectionality describes how (1,2) identities held by an individual. individuals can experience privilege in some areas and disadvantage in other areas. It can also demonstrate how individuals with multiple marginalized identities can experienced compounded oppression. For example, a transgender Asian man can experience racism for being a person of color and oppression because of his gender identity.

Equity Language Guide Governor’s Interagency Council on Health Disparities Approved December 6, 2018

Term (Sources) Definition Examples and Considerations LGBTQ+ (12, 13) An abbreviation for Lesbian, Gay, While LGBT and LGBTQ are often used Bisexual, Transgender, and as short-hand umbrella terms meant to Queer/Questioning. The + allows space capture multiple sexual orientations for other diverse sexual orientation, and gender identities, LGBTQ+ is ideal gender identity, and gender expression due to its more inclusive nature. groups. Sexual orientation is an enduring emotional, romantic, sexual, People use many different terms to or affectional attraction or non- describe their sexual orientation and attraction to other people. People use gender identity; however, the term a variety of labels to describe their homosexual should not be used as it sexual orientation. Gender identity is suggests pathology. one’s innermost concept of self as female, male, a blend of both, or neither. Transgender describes identities and experiences of people whose gender identity and/or expression differs from conventional expectations based on assigned sex at birth. Cisgender refers to a gender identity that matches a person’s assigned sex at birth. Microagression Brief and commonplace daily verbal or Microaggressions can appear as (16) behavioral indignities, whether compliments, but the impact is intentional or unintentional, that are negative. For example, asking a non- perceived as hostile, derogatory, or white person, “Where are you from?” negative slights and insults about one’s or “Where are you really from?” sends marginalized identity. the message that people of color cannot be from the United States and reinforces ideas of difference and marginalization.

Equity Language Guide Governor’s Interagency Council on Health Disparities Approved December 6, 2018

Term (Sources) Definition Examples and Considerations Oppression (2, 12) Devaluing, undermining, marginalizing, Individual Oppression refers to beliefs, and disadvantaging people with certain attitudes, and actions of individuals social identities with the intent to that perpetuate oppression. benefit the dominant group. Institutional Oppression refers to the Oppression can happen at the ways in which institutional policies and individual, institutional, systemic, or practices perpetuate oppression. structural levels. Systemic Oppression refers to how the –see Figure 1: Levels of Oppression major systems in our lives—economy, politics, education, criminal justice, health, etc.—perpetuate oppression. Structural Oppression refers to how individuals, institutions, and systems reinforce one another in ways that perpetuate oppression. People of Color or Collective term for referring to non- People of color or communities of color Communities of white racial/ethnic groups. are preferred terms versus minorities, Color (1,2) which is not recommended because of changing demographics and the ways in which it reinforces ideas of inferiority and marginalization. People with People with functional limitations that Generally, people-first language is Disabilities (15) affect one or more major life activities. preferred as it avoids defining a person in terms of their disability. However, some advocates prefer identity-first language. Asking people about their preference in terminology is a best practice. Privilege (1) Unearned advantage, immunity, and Individuals can be privileged due to social power held by members of a one identity that they hold but dominant group. disadvantaged by another. For example, a white woman with a physical disability has privilege for being white even though she may experience disadvantage because of her sex/gender or disability.

Equity Language Guide Governor’s Interagency Council on Health Disparities Approved December 6, 2018

Term (Sources) Definition Examples and Considerations Race/Ethnicity Socially constructed system of Racial/ethnic categories are socially (1,2,8) organizing people into groups based on constructed, yet they have real impacts characteristics such as cultural on the lives of people. Therefore, the affiliation, physical appearance, collection of disaggregated data is language, national heritage, religion, or critical in order to identify inequities in ancestral geographical base. service delivery or outcomes. Race/ethnicity has no genetic basis— Currently, data standards use separate no characteristic, trait, or gene questions for race and ethnicity. distinguishes members of one Therefore using the separate terms racial/ethnic group from another. The may be needed in certain cases to single term race/ethnicity emphasizes reflect data that is collected using how the words are non-precise and those categories. socially constructed. Racism Individual, institutional, systemic, and Individual Racism (aka interpersonal (2,7,9,10,11) structural ways by which groups are racism) refers to the beliefs, attitudes, advantaged or disadvantaged based on and actions of individuals that race/ethnicity. Racism disadvantages perpetuate racism. Institutional people of color at the benefit of people Racism refers to the ways in which who are white. institutional policies and practices –see Figure 1: Levels of Oppression perpetuate racism. Systemic Racism refers to how the major systems in our Anti-racism is the work of actively lives—economy, politics, education, dismantling racism at every level, from criminal justice, health, etc.— the foundations of institutions to the perpetuate racism. Structural Racism attitudes and beliefs that individuals refers to how individuals, institutions, reinforce. and systems reinforce one another in ways that perpetuate racism. Stereotype (1) Characteristics attributed to an Even so-called positive stereotypes individual or group based on (e.g., Asians as “model minorities”) can generalization, oversimplification, or be harmful due to their limiting nature. exaggeration that may result in stigma- tization and discrimination. White Privilege Unearned advantages, benefits, and Even within racial/ethnic groups, (1, 2) choices that people who are white lighter-skinned people can experience have, solely because they are white. more privilege than those with darker skin, also known as colorism.

Equity Language Guide Governor’s Interagency Council on Health Disparities Approved December 6, 2018

Figure 1: Levels of Oppression

Equity Language Guide Governor’s Interagency Council on Health Disparities Approved December 6, 2018

Terms to Avoid

The table below includes terms that are offensive and that reinforce the marginalization and devaluing of people and groups as well as options for ideal language. Avoiding these terms can help agencies connect more meaningfully with the communities they serve. The list is not comprehensive—it focuses on terms that are still commonly used today but that many people may not realize are offensive. It does not include many of the terms that are more commonly known to be intentional slurs and insults. In general, people-first language (as opposed to identity-first language) is recommended; however some advocates prefer identity-first language. Asking community members for guidance on terminology is a best practice.

Terms to Avoid Ideal Language Aliens, Illegals, Illegal immigrants Individuals who are undocumented, immigrants Challenged, Differently-abled, Handicapable, People with disabilities Handicapped, Special needs Citizens If it is not necessary to refer to citizenship status, use people or residents. Developing nations, Developing world, First Be specific—name the country (e.g., Somalia) or world, Third world, Global South the geographical region (e.g., East Africa). When trying to communicate the level of monetary resources, use low-, middle-, and high-income countries. Disparities due to race, Disproportionality by Inequities due to racism – see next section, race/ethnicity Improving the Way We Talk About Inequities Due to Racism Homosexual LGBTQ+ people, the LGBTQ+ community

Minorities People of color, Communities of color Sexual preference(s) Sexual orientation Special interest groups, Special populations, Marginalized communities, Marginalized people Vulnerable populations Transgendered, Transsexual Transgender, Trans

Equity Language Guide Governor’s Interagency Council on Health Disparities Approved December 6, 2018

Improving the Way We Talk About Inequities Due to Racism

State agencies routinely collect and report on data disaggregated by race/ethnicity. This is important in order to identify inequities in access to or receipt of state services by different population groups, as well as inequities in outcomes. These kinds of data are essential for identifying where additional resources may need to be invested. In general, state data have consistently pointed to differences in access and outcomes experienced by people of color. Examples include gaps in kindergarten readiness, disproportionality in the criminal justice system, disproportionate exposure to environmental hazards, and health inequities. When documenting these inequities, agencies have historically used language that explicitly states or implies that race/ethnicity is a risk factor. For example, if we say that black women are at higher risk for having a low-birthweight baby, we are implying that there is something innately wrong with being black that puts those women at higher risk. In fact, it is the cumulative effects of racism experienced by black women that put them at higher risk.

The Council’s guidance to agencies is to be explicit about racism and other forms of oppression as the underlying causes for the inequities that exist and show up in state data. Such inequities may be due to overt interpersonal racism or institutional racism that results in policies or processes having disparate adverse impacts on people of color. When sharing information on outcomes by race/ethnicity, include context about the underlying reasons, including lack of opportunity, policies that have a disparate impact on people of color, effects of implicit bias on subjective decision making, and toxic stress.

The Council is committed to promoting equity broadly for all historically marginalized groups. The Council also recognizes that racism is ingrained in our history and deeply embedded in our institutions today, leading to the inequities we see across all sectors. Therefore, while the Council seeks to challenge and undue all forms of oppression, it is committed to centering racism as a primary focus. Sources 1. Race Forward (2015). Race Reporting Guide. Accessed at: https://www.raceforward.org/sites/default/files/Race%20Reporting%20Guide%20by%20Race%20F orward_V1.1.pdf 2. Racial Equity Tools Glossary. Accessed at: http://www.racialequitytools.org/glossary#racism 3. Nelson J and Brooks L (2016). Government Alliance on Race & Equity. Racial Equity Toolkit: An Opportunity Operationalize Equity. Accessed at: https://www.racialequityalliance.org/resources/racial-equity-toolkit-opportunity-operationalize- equity/ 4. Hook et al., 2013. Cultural Humility: Measuring Openness to Culturally Diverse clients. Journal of Counseling Psychology. 60(3):353-366.

Equity Language Guide Governor’s Interagency Council on Health Disparities Approved December 6, 2018

5. Tervalon and Murray-Garcia, 1998. Cultural Humility Versus Cultural Competence: A Critical Distinction in Defining Physician Training Outcomes in Multicultural Education. Journal of Health Care for the Poor and Underserved. 9(2):117-125. 6. Danso, R (2018). Cultural Competence and Cultural Humility: A Critical Reflection on Key Cultural Diversity Concepts. Journal of Social Work. 18(4):410-430. 7. Voices for Healthy Kids (2017). Health Equity in Public policy: Messaging Guide for Policy Advocates. Accessed at: https://voicesforhealthykids.org/healthequity/ 8. California Newsreel. Race—The Power of an Illusion. Online Companion. Accessed at: https://www.pbs.org/race/000_General/000_00-Home.htm 9. National Collaborating Centre for Determinants of Health (2017). Let’s Talk: Racism and Health Equity. Accessed at: http://nccdh.ca/resources/entry/lets-talk-racism-and-health-equity 10. Feagin, Joe (2014). Racist America: Roots, Current Realities, and Future Reparations 11. Thomas H and Hirsch A (2016). Sum of Us. A Progressive’s Style Guide. Accessed at: https://s3.amazonaws.com/s3.sumofus.org/images/SUMOFUS_PROGRESSIVE-STYLEGUIDE.pdf. 12. LGBTQIA Resource Center. UC Davis. LGBTQIA Resource Center Glossary. Accessed at: https://lgbtqia.ucdavis.edu/educated/glossary. 13. Human Rights Campaign. Glossary of Terms. Accessed at: https://www.hrc.org/resources/glossary- of-terms?utm_source=GS&utm_medium=AD&utm_campaign=BPI-HRC- Grant&utm_content=276004739490&utm_term=gender%20identity&gclid=EAIaIQobChMI54LJmcb g3AIVy2p-Ch0ZtwLrEAAYASAAEgJlRfD_BwE. 14. City of Tacoma, Office of Equity and Human Rights (2015). Handbook for Recruiting, Hiring, & Retention: Applying an Equity Lens to Recruiting, Interviewing, Hiring, & Retaining Employees. Accessed at: https://cms.cityoftacoma.org/OEHR/facilitatingchange/COT_Handbook_for_Recruitment_and_Hirin g_October_2015.pdf 15. National Center on Disability and Journalism. Disability Language Style Guide. Accessed at: https://ncdj.org/style-guide/#D 16. Sue, DW et al., (2007). Racial Microaggressions in Everyday Life: Implications for Clinical Practice. American Psychologist 62(4): 271-286.