Podcast

Navigating Choppy Waters While Staying the Course

In this episode of the Gordon Feinblatt podcast, Alex Montanio and Todd Chason delve into the complexities of diversity, equity, and inclusion (DEI) in the workplace. They discuss the implications of Executive Order 14173, the evolving legal landscape surrounding DEI, and the importance of creating inclusive environments. The conversation highlights the need for organizations to balance legal compliance with their core values while navigating the challenges posed by changing political climates. Practical examples, such as parental leave policies and employee resource groups, are shared to illustrate how businesses can effectively implement DEI initiatives.  

 
FY 24 CSR Report
EO 14173 | Ending Illegal Discrimination and Restoring Merit-Based Opportunity
 
This episode of the Gordon Feinblatt Podcast, along with all of our previous episodes, can be listened to on Spotify, Apple Music, Amazon Music, and iHeart Radio.

Transcript:

Taylor Upchurch (00:05)
Hey everyone, and welcome back to the Gordon Feinblatt podcast. Today we're diving into DEI, which as many of you may know, stands for diversity, equity, and inclusion. Joining us to discuss this topic is Alex Montaneo and Todd Chason. Alex is an attorney here at Gordon Feinblatt, as well as our director of corporate social responsibility. And Todd is also an attorney, as well as the firm's managing member.
In this episode, Alex and Todd will explore the evolving landscape of DEI in the workplace. They'll discuss the implications of Executive Order 14173 from January 21, 2025, which aims to end illegal discrimination and restore merit-based opportunity.

They'll highlight the importance of attracting diverse talent and the role of corporate social responsibility in fostering an inclusive workplace. Plus, they'll share practical examples like parental leave policies and community engagement initiatives, all while emphasizing the need for businesses to stay committed to DEI efforts despite the changing political climate. This episode is perfect for any organization looking for guidance on navigating DEI challenges in today's legal landscape.
As always, if you need legal assistance or have any questions, you can find contact information for the attorneys featured in this episode, as well as information about the firm all within the show notes. So, I'm really excited for everyone to hear this episode today. Let's go ahead and get started.

Alex Montanio (01:33)
Hello and welcome to the Gordon Feinblatt podcast. My name is Alex Montanio, and I am counsel in the health care and employment law groups here at the firm. And I'm also the firm's director of corporate social responsibility. And I'm joined today by my colleague, Todd Jason. Hi Todd.

Todd Chason (01:48)
Good morning, Alex.

Alex Montanio (01:50)
So, we are coming together today to talk about the moment where we find ourselves in related to diversity, equity, and inclusion. And there is a lot going on right now legally from the federal government that's really changing the temperature among corporate clients around diversity, and inclusion. But the reason you and I are talking about this is both because you're a business leader and you're part of our firm's diversity, equity, and inclusion committee. And this is something that you have to wade through both as a lawyer and as someone running our firm. And so, we find ourselves in these times. We have to think about; how are we going to navigate them together? And that's part of what my role here at the firm is I think about our diversity, equity, and issues. And I advise you and other members of leadership about what's going on with diversity, equity, and inclusion. And I also help some clients externally think about the same types of problems. So, Todd, what's like, why this moment? Like why do we need to have this podcast today?

Todd Chason (02:51)
So, for you and for me, I think we're pretty comfortable with the idea that this is a constantly evolving item, right? You can sort the things that I think about in managing the firm into the set it and forget it versus the things that need more or less constant attention. And for us, this corporate social responsibility, DEI, whatever label you want to put on it on a given day is something that we're thinking about more or less constantly.
But that's not the case for everyone. And we do seem to be getting different and conflicting information almost every day. And so, I think part of the reason that we're talking is for those who are not used to talking about this all the time to get people thinking and also to get them probably a little bit comfortable with being uncomfortable, that that's the new normal that we're in right now on this topic. And so, let's slow it down, think things through and let's not react too quickly.

Alex Montanio (03:56)
Yeah, I mean, we've talked a lot about there are times where the law moves very slowly, and you see change kind of over the course of decades. And there are times where it moves very fast, where you see change over the course of hours. We've talked a lot about what it was like to advise clients during the early years of the COVID pandemic, where we would get new legal guidance hourly, daily. And this is at the moment like that where we are getting new guidance, new legal orders, new judicial opinions on this particular topic at a very quick pace. So what we're going to talk about today is both what we know about the state of law related to DEI as the date we recorded this podcast, which is March 24th, but it certainly is also reflective of kind of this larger trend of kind of where the discourse around DEI is in 2025 as a whole. So even though by the time this podcast is published, there may be even more illegal guidance. I think that the issues that are at play will remain fairly constant for the foreseeable immediate future. 

Todd Chason (05:00)
Yeah, I love the COVID analogy because I was running the firm five years ago when we were in the opening days of COVID. And it was almost as political as the topic that we have here today. mean, whether you were, everybody was going remote, whether you were in the office, whether there were masks, whether there were inoculations, know, whatever the topic was, everybody was charged up about it. Everybody had an opinion and it was moving so quickly. so both on behalf of the firm and on behalf of our clients, we had to be paying attention every minute. And what became clear very quickly is the point we made a minute ago, which is those who are going too quickly and not thinking it through and not waiting to see how it plays out, they're the ones who made the missteps and ultimately did things that they later regretted, where if you took things slowly and you got all of the information and you took a deep breath and you remembered what you're trying to accomplish, it wasn't a comfortable or happy time, but it was manageable.

Alex Montanio (06:08)
Yeah, right. mean, anytime you get really high stakes, I think, for business when you have these issues that intersects between there's legal questions that have to be considered. There's pure business considerations that you have to factor in. And then also when you start to get into what you describe as political, what I think of as kind of a value-based consideration, right? And that when you have that triangle of factors, you have high stakes decisions that have to be made. And that's certainly where we were before and during COVID, it's certainly where I think we find ourselves now in this conversation around DEI.
And where our firm kind of falls on that spectrum, when I think of Gordon Feinblatt as my client, it is a company that I think is deeply internally committed to pursuing DEI. And it's something when we help our clients navigate externally, we have to recognize that the way they balance those three variables, values, legal analysis, and business judgment will be different for every single client that we talk to. But that's what our job is, to provide that legal analysis to folks and then help them think about how to weigh those against their values and business judgment.

Todd Chason (07:16)
So, before we get into what I'm thinking and what the firm's doing and what your advice to us is, level set for us a little bit. Because I know that I can't even keep up with your barrage of texts and emails on the topic, much less the full panoply of information that's out there. So, we're recording this on March the 24th. And we know that probably by the 25th, this is going to be a little bit dated, but we're about eight weeks into this administration. Where do we find ourselves?

Alex Montanio (07:52)
Yeah, there's a couple of big pieces that I think are really notable to talk about. So, the first is Trump's executive order 14173, ending illegal discrimination and restoring merit based opportunity. This is the executive order where they the Trump administration takes square aim at diversity, equity, inclusion. Let's think about what an executive order is. It is a directive from the White House telling the government how it should go about its business, like how to interpret the laws, what types of topics they should be pursuing. What it is not, it's not a new statute. It's not a new law itself. It is guidance to the government. And what that executive order 14173 tells us is that the government is very, very deeply concerned about how diversity equity inclusion is being implemented. It has three parts. One, there's some piece of it telling government agencies how they should handle DEI internally.

There's another part that's really the next two parts are really client focused. There are some instructions to private corporations that are federal contractors saying that they have to issue written certifications Saying that they are not pursuing illegal DEI activities and that their DEI activities comply with existing anti-discrimination laws and then there's a final section of the executive order where the White House is putting private sector companies, even those that are not federal contractors, that are not doing business on behalf of the federal government, on notice that they are very interested and will pursue this idea of a legal DEI where they find it in the private sector.

Todd Chason (09:34)
Do they say what that means, what illegal DEI is?

Alex Montanio (09:37)
They don't, right? And that's one of the challenges with this executive order. And it was immediately brought to court. And initially, a preliminary injunction was issued in part because it was unclear to everyone, OK, well, what is a legal DI? What are you asking us not to do? That injunction was lifted a couple of days ago. And largely, what I think will happen now over the next couple of days and weeks is we'll have to see how individual agencies that pursue these types of actions interpret that.
Additionally, to try to add some clarity to this idea of illegal DEI, the Equal Employment Opportunity Commission, the EEOC, issued some guidance. Again, guidance is, this is non-binding, it's not new law, but it is suggesting how these federal agencies are now thinking about DEI. And so, they issued two pieces of guidance last week, and they gave examples of what they think might be illegal DEI, and they looked a lot at things like hiring practices where you're giving preferential treatment to someone because of a protected class like race, gender, sexual orientation, religious beliefs. They looked at things like DEI trainings. They looked at scholarships and like other benefits. They also looked at where people might be excluded from a particular thing such as an employee resource group. And they gave all these examples, but what's important to understand is that the EEOC did not change any existing statute that's on the books protecting people from discrimination in the workplace. So, what they said is you can't violate those same statutes that have been in place for decades. So, they're offering kind of, they're suggesting to folks that they will be scrutinizing your practices more, but they're not saying we've created new law. So, then it's up to companies like ours and our clients to think about, okay, well, through this lens, how are we going to interpret what our DEI programs are? And then the last piece I'm going to talk about in terms of legal action that's happened recently is we've heard a lot from the Trump administration.
But there's also a number of state attorney generals, including the state attorney general of Maryland, who issued their own guidance concerning diversity, equity, inclusion that largely take the opposite posture. They say, no, like diversity, equity, inclusion in itself is not illegal. It's not defined anywhere in federal statute. And in fact, we think most of these are very important for corporations to comply with. We think you should be doing DEI trading. We think you should be supporting employee resource groups, et cetera, because that's how you can comply with non-discrimination laws.
So, we have all of these things out in kind of the legal sphere from both state and federal government creating this tension and neither is saying you can't do or you must do any particular type of DEI program, but it's saying we need to be thoughtful about how we approach DEI. So, we've got kind of competing ideas of what that's going to look like moving forward.
So, where that takes me is you've got these varying kind of legal guidance out there. So now we have to think about as a business leader, you hear all these things, what's your immediate reaction?

Todd Chason (12:52)
So mostly it's to not have an immediate reaction. It really is about taking a deep breath and taking it in. part of the challenge that I've had is that, and I asked you what the definition was of illegal DEI, because I really feel like I don't recognize in these orders the same thing that I think I'm doing.
I don't think that I'm doing anything that anyone would think is illegal. I think, I don't like to get into semantics, but at the same time, feel like definitionally, these are two different things. And I imagine in my head two people talking past each other in a different language about the topic. I think of our work with students. I think about our learning about different cultures represented by different people within our organization. I think about trying to broaden our reach both for clients and for people who work for the firm. If you think about DEI in each of the letters, I don't have a ton of control over the D, the diversity. We will be as diverse as we end up being. Equity and inclusion, I have a fair amount of control over putting into place policies that make sure that everybody gets a fair shot, and that people feel welcomed, that they see themselves and see a spot for themselves within the organization. We don't make anything. We don't have IP that we sell. We have people. We have people who are clients, and we have people who we work with. And from the very outset of our efforts in this area, the goal has always been simply to broaden the pool, to make sure that as many people want to work for us as possible and that they're top people. When you think about sort of the percentages in a business like ours at our size in a town like Baltimore, we really can't exclude anyone. We need to have access to 100 % of the potential clients and 100 % of the potential people, whether that's lawyers or staff or whatever the position is that we're looking at. And I do think it matters to people in both of those categories, whether we seem like a place they would want to work. And so, I try to control what we can control, which is to make sure that the way that people see our business is how we want to be seen and that they see it as a place that will welcome them without regard to any of the different markers that people focus on.
And that's where I think the disconnect is between what I'm hearing in these different pronouncements that you just summarized and what it is that we do. Does that make sense?

Alex Montanio (15:55)
Yeah, I think that makes a lot of sense. think sometimes it feels like the conversation around DEI is imagining a pie that has slices that are going to be cut up and there's not going to be enough slices. I choose to think of it as a different kind of pie, right? I can just make more pies. And I think that's, you can never have too many pies, right? I think that's part of what we're saying is that,

Todd Chason (16:10)
We can never have too many pies.

Alex Montanio (16:19)
We're creating more opportunity for everybody, but it's not at anyone's expense, right? Like we've created a more welcoming environment. Because I think it is really important when you talk about DEI, sometimes what I see clients do or just, you know, in the general discourse, DEI has become kind of a stand in for just race or just gender or just sexual orientation, kind of these hot ticket items right now.
And yes, those are absolutely part of DEI, but it's really so much broader than that because we know that everybody brings all of these identities to the table. You can't take those identities away from them, but they're not just those identities. Everybody's kind of the sum of all of their pieces, and all of those pieces are really valuable. The business case for DEI hasn't changed. We know that when you think about diversity of perspective and experience, you get better business decisions, right? This has been widely studied for decades and there's a lot of research in this area. So, when you talk about you want to have the strongest firm possible to provide the best client services, you're going to have the best team to solve problems when you have people who have a lot of different experiences and perspectives.
And that just has what the empirical data shows us. It also is interesting when you talk about the diversity piece being the part of the DEI equation that we can't really control for. Some of that is because statistically, the demographics of our country are changing. We are a more empirically diverse country than we were several decades ago on a number of different kind of slices. We have more young people identifying as part of the LGBTQ community. We have a more racially diverse country when you look at the 2020 census results. We have more women pursuing higher education than men, right? It's just the mix of people that are looking at our firm as both potential clients and as potential hires has just changed over time. But it doesn't, to your point, we're not excluding anyone. We want all of those people to see themselves as being hopefully one day a Gordon-Friendly employee or potentially someone we would work with as a client.

Todd Chason (18:29)
Yeah, I the easiest sort of population to think about this with is the law students, right? I mean, we hired lots of different people, lawyers and non-lawyers, but that particular population is rather identifiable. And at this point, in stark contrast to prior generations, cis-white males comprise, for the two local law schools, Baltimore and Maryland, maybe 25 % of that population. That certainly wasn't the case when I went to law school 20 plus years ago. It clearly wasn't the case when my father went to law school more than 40 years ago. And so, if you think about it just in a basic number sort of a way, if I'm only speaking to 25 % of the law school population, I'm going to go out of business pretty soon. If that other 75 % doesn't see themselves working at my firm, then that's path to annihilation. Conversely, even the 75 % is really not enough. I can't just say I'm only going to focus on the people with the diversity marker because then I'm missing out on 25%. I really have to speak to the full 100%, but that's not something that you can just be neutral on, I haven't found. It really does take actual effort to think about what's important to 100 % of the people who work with the firm. over the years that we've been doing this, the clear command from the diversity committee, from the firm has been that this is not a quota effort. That was a question I posed to our very first meeting at the very first time we really were seriously looking at these issues was, should we just have quotas? In some ways, it's the easy answer.
Fine, we'll just pick a number. And you see that in some of the corporate goals that are out there and some of the programs. that you would interview a certain percentage, or you will hire a certain percentage. But the very clear command back was you don't need to do that. Stop trying to control every piece of this. Just focus on what you can control, which is being a fair place that people want to work, broaden the pool. And so we've gotten our name out there.
In our efforts, we've tried to let more people know about us at all levels, not just law students, but going back to college, going to high schools. And so, what we've seen is an overall growth in not only the diversity of the applicants, but just our applicants period by a lot. You can speak to that as our hiring person for the first-year lawyers, right? I the number of applications you have to go through and the quality of those applications has gone up exponentially in the past six or seven years.

Alex Montanio (21:26)
Yeah, that's, that's absolutely correct. When I took over chairing the first year hiring committee, which I do with a number of our great colleagues, you know, the, the last three years, the applicant pool has not quite doubled, but almost, we were getting very close to that number. But what always impresses me, because I read every single application that we receive for a first-year attorney is what you're saying. The quality, the competitiveness of that pool has increased too. Right. Which is a fantastic position for us to be in making hiring decisions, even though I think it's one of the hardest things we have to do because you're choosing between really excellent candidates. But I think part of the way that we did that is a lot of the policies that people sometimes think of as a DEI type policy are policies that are really actually attractive to everyone. It turns out that everyone likes some degree of flexibility in their workplace. 
Turns out everyone wants good feedback and good training and good opportunities to do interesting work. Everyone wants policies that reflect that they are people outside of our workplace. And while that now has welcomed a group of folks to apply to our firm that maybe historically had not considered law firms in the past, those types of policy decisions that we've made benefit 100 % of the people that work here.
And are I think really well received by 100 % of the people that work here that are really enjoyed by a lot of our colleagues. So, I think some of what we've done is when we think about a DEI policy, sometimes people want to shoehorn it.
It's like, okay, if you expand parental leave., well that's really targeting women. No, lots of people are parents and it turns out that's good for both men and women and however people choose to identify. So, we've really looked at kind of policies that will help not only attract folks to our application pool but also how do we retain this great talent once we found it.

Todd Chason (23:23)
That's a good example, going back to the beginning of our conversation of the evolution of all this, that it's really not set it and forget it. That as we go along, we try to pay attention to how can we get better, how can we improve. the family leave piece of it has been an important piece of that. And it's another example of where I as a leader really benefit from the diversity of opinions coming to me, but also just being dedicated to listening.
Because I, my family, you know, the way that we raised our kids, you know, my, my wife was at home and so, we didn't need to think about the, she wishes that we had now. And I wish that we had to, but it, I didn't need to worry about what time I was going to get home or, you know, what time I was going to leave or whether I had to drop off the kids. which was very nice for me, not so nice for her or for the kids.
But it's also very rare at this point in time in 2025 to have a family that's only got one parent actively working outside of the home. And that was something that I had to learn about and at the time our chairman, Barry Rosen, had the same experience where it was eye-opening for us to realize that paternity leave wasn't just something that was nice to do for people, it was vital.
And, you know, looking at the length of time, you know, longer than the three days that I had with our last kid, but also being able to plan that out and stagger it between the two parents. think the evolution of that has really made a difference, especially for the longevity of women with our firm, right? You know, we have always hired women in probably greater numbers than men, you know.
Certainly, in the last few years, but I think going back even further than that. But we were rarely getting past the point of having kids because the different policies really just didn't facilitate it and certainly didn't communicate. We want you to stay right? I don't think that we were trying to communicate. We didn't want you to stay, but by not having thought it through and speaking to that group.
We were inadvertently communicating. We really want you as an associate and whatever happens after that doesn't.

Alex Montanio (25:57)
Yeah, I mean, I think that the parental leave policy is such a great demonstration of that triangle of factors we have to balance, right? There's the legal consideration. At the time when we really started tinkering with the parental leave policy, our state didn't require parental leave to be offered by private corporations. So, we had thought about that. And then as the law in Maryland has changed and evolved, we continue to go back and make sure our policy is consistent. There's the business judgment piece of it where we recognize that increasing parental leave allowed us to retain some really great folks that we have hired. And then there's the value piece of it, right? I think when you look at our policy now, it really shows that we value people who are caregivers and recognize that they bring a lot of skills to the table. Just inherent. think if you can be a parent and be someone who's working, that's tough, right? It requires you to develop a lot of skills around time management and balancing. And look, I have two kids at home. My negotiation skills, two little kids. I have a 20-month-old and a four-year-old. My negotiation skills are better than they were four years ago, I promise you. It has sharpened my tool set for sure in a way that I think is probably beneficial for my clients. If I can negotiate with a toddler, I can take on any opposing counsel, no question. 
But I look at our policy, right? And it's thinking about, I think if you were doing the type of quote unquote, illegal DEI that the administration is so worried about, we just said, okay, women, you get more time. Good for you guys. Here you go. That's not what we did. We said, okay, everyone who's going to be a new parent, whether you're giving birth to a child, your partner is giving birth to a child, you're fostering, you're adopting, all of you get more time. So, this was not an exclusionary policy. It was actually a very inclusive policy by design, recognizing that everybody in that equation was going to benefit. The other piece that I really love about how we did that is we said to people, we're going to give you this pool of time and you have 12 months to decide how to use it in the way that works best for your family. And what we've seen result from that is that everybody is kind of doing a choose your own adventure situation. We have some employees who are taking the full amount of time available to them right at the start. 
And then we have other employees who...I took a chunk of time at the start and then came back part-time because I liked having a little bit of adult conversation in my week as I was kind of onboarding back into the workforce. I thought I really liked having one or two days a week where was like, okay, I'm going to think about work things and then I'm going to go back and spend time with my then newborn baby. We have other folks who are staggering their leave in conjunction with what their partner has available and kind of working around those different dynamics.

Todd Chason (28:53)
And other people who have decided to take it all from the jump and run through. The funny thing is that with each different approach, it's worked. One of the lines that especially our executive director, Robyn Seabrease, uses a lot is sort of the need for flexible flexibility. She did take that from somebody else, but I quote it to her now… turns out that when you give people the discretion and you allow people to have the power to make their own decisions, they usually make the one that will work best for everyone. And I've seen all of those different approaches and even some other permutations from what you've described work fine for everybody, for the clients, for the parent, for the firm. And it is funny how it just, even though those are different ways of going about it, they all work equally well. 
But to take it back for a second, I think that what we're really talking about is this notion of meritocracy. I mean, if we're really getting down to it, it's this concern that people are prioritizing markers over merit. And so, we should hone in on that for a minute.
We talked a little bit about the hiring process and some of the changes that we've made. Do you think that we're susceptible to that? mean, is that something that you worry about, is that someone's going to say that because statistically we've hired more women than men and more people of color than not, that we're at risk for someone saying that we're elevating those markers over merit.

Alex Montanio (30:48)
No, I we thought very carefully and intentionally about how we structure our hiring process. And I think that kind of argument without looking at the mechanics of how we hire is baseless and frankly somewhat insulting in the sense that you're, yeah, you knew I would feel that way, right? It's almost making the assumption that women or people of color weren't going to be qualified to start.

Todd Chason (31:02)
I thought you might.

Alex Montanio (31:12)
Right? That is kind of the base where that idea is coming from. Because you're looking at the group of folks that we've hired and saying, someone doesn't deserve to be here. And I'm incredibly confident that if you look at who we've hired, they deserve to be here and then now have been here and have demonstrated that they were always excellent hires. Right? But you know, people want to, whether it's the administration or others, want to look at under the hood of how we do it. I think our process; what we did a couple of years ago is really look at what are the best practices in hiring. And to do that, I think we had to get away from thinking, well, this is how we've always done it. Therefore, it is a good way to do it. We went and looked at the data. There are industrial psychologists who study hiring and said, wow, there's a lot that we can learn here to think about our process.

Todd Chason (32:02)
There's a summer reading of reading Daniel Kahneman by the poolside like the cool kids do, right?

Alex Montanio (32:07)
Yes, we are very cool on our vacation reads for sure. Everyone's going to want to get on that book list with us. you know, so on the front end, because of all the work we had done, we increased the pool of people and lots of really excellent qualified candidates wanted to come. So now that we had all those people, we had to decide, how are we going to think about this? And if you were just selecting and saying, okay, well, we're going to just pick women or just pick people of color, that doesn't make sense and nor is that what we have done.
We are looking at a variety of factors that we think make excellent attorneys. And I think historically that conversation has been focused very heavily on GPA from law school. And you can see that that's something the administration is still very interested in. They've recently sent some letters. The EEOC has sent some letters to some law firms asking for information around GPA. But I think GPA is just one metric that you can use to learn about a candidate. And I don't think it is a perfect one-for-one translation about who is going to be the most successful person in the law firm.

Todd Chason (33:14)
Yeah, mean, and we should pause there for a second too, because we've had this internal debate. We've talked a lot about it, and there are at least a couple of things that really jump off about it. One is the law of small numbers, right, is that we're evaluating people who have not even done three full years of law school. By the time they're applying to us, they're only through two years usually, I think, right? Yeah, so you've only got a few semesters, and one lousy C can really drag down a GPA in a way that isn't all that meaningful, right? I got a C my second semester, it was the only C I got in law school. But boy, did it drag my ranking and GPA down. Fortunately, it meant that I didn't have to do law review. But we also found that there really wasn't a direct correlation between our highest performers over the years and the highest GPA. Doesn't mean that there aren't people with real high GPAs that have done just fine, but they weren't correlated meaningfully. 
And some of what our reading taught us was, man, even the best indicators are maybe two thirds to three quarters indicative of what's going to happen because of the undeniable presence of what you don't know. I mean, you just do not know what's going to happen with somebody after they've hired either with them personally or with the business. So, between the fact that it's small numbers and it's an indicator but far from the only indicator, the over-reliance on it over the years just becomes silly.

Alex Montanio (35:14)
Yeah, right. And it doesn't mean that I think GPA doesn't matter at all, but it's just one indicator, right? Like I think, you know, there's a range, a very large range of GPAs that show that you went to law school, and you took it seriously and you put in your best efforts, right? But then I think about all the other things that we need to know about candidates to hopefully form our best educated guess about their trajectory. And even as you said, even that's not conclusive, right? 
So, then you look at something like a writing sample and what we were doing before, which is every candidate with their initial application provided a writing sample. And what you couldn't tell about that is, you know, what was the topic going to be? How do those two topics compare? What format is that writing sample in? Who helped them? Who didn't receive help? Right? You have no idea. So now you're not really getting a useful comparative measure out of that. Yeah, very apples to oranges, right? 
Todd Chason (36:05)
Very apples to oranges.
Alex Montanio (36:11)
What we did on that piece is now when we have our top candidates come in to the firm for a tour and to meet our folks and to finish up their interviews, we do an on-site writing exercise where now they're all having the same prompt and they're all getting the same amount of time and they're all getting, we know they're not getting outside influence on this and we've designed it to be something that's very approachable for someone who is still finishing law school or has recently finished law school if they're clicking. So, it's a very doable problem, but now we get a sense of, how organized was their thought process? They have the kind of the logical thrust of the problem. And now we can compare them to each other in a much fairer way. And so...

Todd Chason (36:55)
Well, truly meritocratically, I'm not sure what the right format is, but it really, I think, allows the best of the writers to rise to the top on their own merits. And of course, it's a blind review. We have no idea which candidate we're grading the paper for. 
So, I think that answers the meritocracy piece of the thing. The other thing that pops into my mind is something that I'm curious about your thoughts on is the affinity groups, right? Within the firm and then also the ones that we work outside of the firm with different schools and different groups. I think at some level that's another piece that these orders are somewhat indirectly thinking about, right? Maybe directly thinking about it.

Alex Montanio (37:58)
Yeah, directly, I would suggest they're very interested in these groups, right? So, what in the recent EEOC guidance that I referenced at the top, you know, they're very much looking at these groups. So, you're talking about things like affinity groups for women or people of a particular race, or there's some groups about military service, there's groups about LGBTQ status. There's really kind of any number of permutations of these types of groups, employee resource groups, ERGs.
And what they're suggesting is that if this group is conferring some employment benefit, whether it's a salary, a bonus increase, special leadership pipelines that would then lead to a new job or a promotion within the company that is exclusive to that employee resource group, okay, well maybe now there's an issue with a statutory violation.

That was true last year, right? Nothing has changed there. But I would suggest that these groups still provide a lot of value because a lot of times what I'm seeing in these groups is it's a place for a community. It's a place for people who might have had similar experiences, particularly some of our more senior folks to turn around to the more junior folks and say, I've been in your shoes. I can offer some guidance, right? 
But in our, certainly the way they're set up in our workplace, they're not exclusionary. Anyone can come. If you're interested, Todd, in coming to the next meeting of Women's Alliance, great, we'll see you there. And you'll find, great, we just had one last week. It was Taco Bar, it was excellent. I will say that the lunch is on point. Though I don't think that's the type of employment benefit that the EEOC is worried that we're conferring. 

Todd Chason (39:29)
What are you having for lunch? That's really the question.
Man… One of the other real benefits that I get as a leader from these, whether it's internally or externally, is either because I go to them and hear people's thoughts and questions and issues, or whether they're filtered through, that there is the ability to get some different viewpoints that way from the particular groups. And different groups are affected by different things differently. They just are. We talked about the parental leave piece of it, which affects a certain group a certain way. But that's awfully valuable information. And the diversity of thought that you're talking about those groups do facilitate that and I think in important way in a way that I wouldn't want to lose. Because I think otherwise, you're just you're oversimplifying life. I like to simplify but I suppose to oversimplify.

Alex Montanio (40:30)
Yeah, absolutely.
But it's also the reality that a lot of the groups that have ERGs, women, veterans, people of color, LGBTQ folks, are still wildly underrepresented in a lot of corporate America.
We still find that they are not the majority of folks, particularly as you start to move up the ranks. So I think, again, that idea of how do we get feedback from these groups to figure out how can we make our policies more inclusive so that all these folks can continue to thrive in our workplace is very valuable still. And just, again, like creating a space where people feel included. And I think employee resource groups are one piece of that. We also have a lot of DEI programming that happens outside of those just to make sure that everyone in our firm feels that there are ways that they interact with our DEI program and can contribute to our DEI program. And I've really seen a lot of our colleagues from all sorts of different backgrounds taking advantage of those programs, which tell me that they're meaningful and important. And we certainly, we also do an annual survey that shows that people really care about these in general.

Todd Chason (41:46)
Well, and that really sort of touches on probably the last thing that we ought to cover before our producer Taylor cuts us off, which is the idea of even if you wanted to rather aggressively comply with these new rules, how you would do it. I know the analogy you want me to use, which is to glitter, which is the notion that it's so interwoven through our organization at this point that I don't know how I would scrub it. It's part of our hiring practices, it's part of our social practices, it's part of everything that we're doing. I don't know how you'd get rid of it. Some of that goes back to the definitional problem, what it is, and I think we're talking past each other.
Part of my real hesitation here is the idea that I think that if you're not really being thoughtful, if you're not being sincere about these efforts, that people can tell. And one of the things that is sort of a buffer against taking easy ways out for me is this idea that I think that if you overreact at this point, your sincerity is going to be in question forever. Right. I mean, even in just the last few years, we've seen these incredible swings from summer of 2020 and George Floyd and people's reactions to that. And now to these orders that you look at this and you say, well, you know, maybe if it took George Floyd to wake you up and you did something, then people could say, OK, well, better late than never. And you're here now and you can be part of this. If you take what really appears to be an easy way out and just give up on all of this wholesale at this point, I think that you're never going to get that back again. And I think we're seeing that in the marketplace now, right? That firms or businesses or others who are just absolutely caving and not giving any thought to the effects to these various groups and to their organizations, whether it's their boards or whether it's their applicants or whether it's their customers saying, no, turns out you weren't being sincere. And I think that the possibility of losing that without ever being able to get it back seems to me to be the ultimate clarion call for caution here.

Alex Montanio (44:32)
Yeah, that's right. When we go back to the three factors, the legal analysis, the business judgment and the values. Right now, you're talking about the values. Right, if it was the right thing to do in 2020. Is it's still the right thing to do now. And you should have always been thoughtfully designing these programs so that you could be authentic and sincere about them. Nothing about DEI is cookie cutter, right? You should be looking at what works for your workplace, what makes sense for your personnel, for your team, and then doing that. And I can't imagine that that answer has changed dramatically from a couple of years ago to now, right? And so, I think...
to your point, when I'm assessing kind of the values part of that triangle, that's a conversation that every executive leadership committee, all the folks at different companies that are in charge of making these broad policy decisions have to weigh is, you what are our values? Do our actions reflect the values that we've put out there?
And then how are our stakeholders, whether internal or external, going to view our commitment to those values? And so that's part of what I think every business leader has to ask themselves right now. And I think this is what I'm advising a lot of our clients to do is exactly what you're saying, right? Stay calm.
Don't overreact, right? The law has not actually dramatically changed in any way from where we were last year. There's a lot of noise, there's a lot of excitement, there's a lot of legal alerts that we're getting pushed out, but the laws on the books haven't changed, which means we shouldn't be dramatically changing course. And again, it's an ongoing conversation, right? If something happens tomorrow, we'll continue to review and assess. But our values are really the North Star that's going to guide the lens through which we weigh the other two factors, our business judgment and our legal analysis. And I think you got to look at all those three in concert. But the value piece is something I would think shouldn't be swinging dramatically if it's sincere and authentic. And that's what we know people care about when assessing the impact of DEI programs at their respective companies.
So, I think kind of the takeaway from this is, stay calm, stay the course. We know that this is confusing. We know that the stakes feel very high. And this is a great time to pause and do what I would call a DEI checkup. We are helping lots of clients right now look at their DEI policies and make sure that they are falling within the boundaries of what is legal best practice. But they can do that and still adhere to what their stated values are.
So, we're here to help. This is something that I'm working on with our employment law team to advise lots of clients about how to navigate this confusing time. But it is something I think that can be done, will continue to do, and we're here. So, if this sounds like something that your company wants to have a conversation about, give us a call. We'd love to chat with you about it.

Todd Chason (47:26)
Well, thanks for having me, Alex. I've enjoyed our conversation.

Alex Montanio (47:29)
Todd, thanks for being a really great client and having this conversation with me. This is work that I enjoy deeply, and I think is really important and I think you share those values. And I look forward to having future conversations with you and others in our firm about our diversity and equity inclusion programs here. So again, we'll have some show notes that have links to all the legal pieces we talked about and we're here if you want to reach out and talk about your company's DEI program. Thanks for listening and stay tuned to future episodes of the Gordon Feinblatt podcast.

Taylor Upchurch (48:02)
All right, everyone. Thank you so much for joining us on this episode of the Gordon Feinblatt podcast. Here at Gordon Feinblatt, we're not just your lawyers, we're your trusted advisors dedicated to serving you, our clients and our community. If you ever have any questions or need assistance, you know where to find us. Please don't hesitate to reach out. Information for the attorneys in each episode, the firm and any other relevant materials will be available to you in the show notes. Be sure to subscribe, reach out directly and continue to tune in with us each month.
And until next time, take care.