Nudging Diversity: Merging Law and Behavioral Science to Reduce Workplace Discrimination and Increase Diversity

Abstract

Today’s employers find themselves in a complicated bind when it comes to workplace diversity and anti-discrimination initiatives. On one side is the lasting confluence of the #MeToo and Black Lives Matter movements, which rightly caused many organizations to reevaluate and reinvigorate their diversity and inclusion efforts. On the other side is employment law’s increasing inability to support such efforts. As workplace discrimination has moved from overt, intentional manifestations of prejudice to unconscious bias and structural discrimination, traditional employment law solutions have become less effective. The Supreme Court’s recent affirmative action decision striking down virtually all race-based considerations in college admissions—and suggesting future scrutiny of all demographic-focused workplace diversity, equity, and inclusion (DEI) programs—is poised to make things worse.

This Article provides a path forward by merging employment law with behavioral science. While the two are most often considered substitutes in the organizational context, this Article innovates by positing a complementary relationship. Recent behavioral science innovations—namely a deeper understanding of how choice architecture can be used to “nudge” organizations away from discriminatory decision-making heuristics—offer an increasingly important set of tools to help effectuate workplace change. Employment law can serve as the delivery mechanism for that change, incentivizing employers to use data-driven behavioral science techniques to combat bias. This way, the law can help employers advance their DEI goals through “inclusion nudges” without requiring them to impermissibly focus on the demographics of those they seek to hire and promote. After describing the current state of employment law and its limitations, and then highlighting the promise of anti-discriminatory inclusion nudges, concrete examples of how this may be accomplished across different legal, regulatory, and behavioral domains are provided. What becomes clear is that a complementary approach is the best path forward to lastingly reduce discrimination and increase diversity in our organizations, and it is also critically necessary lest employment law become irrelevant during a moment in American society that will set the legal, social, and behavioral agenda for years to come.

Keywords: diversity, employment law, behavioral science, nudges

JEL Classification: K31, L88, L80, L50, L25