HR preps for new administration, Apple pushes back on anti-DEI, and reverse discrimination lawsuits

Get ready for your HR news fix! This week we're diving into three timely stories: guidance on how to approach the administration change, Apple's response defending their DEI initiatives against shareholder pushback, and a potential emerging trend of "reverse discrimination" lawsuits. Join us as we unpack what these developments mean for workplaces and HR professionals, share our takes on the latest industry moves, and break down why these stories matter. Whether you're in HR or just interested in how companies are navigating these challenges, we've got you covered with clear analysis and real talk.


Connect with Aubrey
On LinkedIn: https://www.linkedin.com/in/adblanche/
https://aubreyblanche.com/

Connect with Stacey
https://www.linkedin.com/in/staceynordwall/

Articles
How HR leaders can prepare for a new administration and congress
‘Inappropriate’ micromanaging: Apple pushes back on anti-DEI proposal
‘Reverse’ discrimination claims may pose a class-action threat

Stacey made reference to this LinkedIn post: https://www.linkedin.com/posts/franbenjamin_dei-activity-7283595143100690432-0HFw

Chapters

• 3:12 How HR leaders can prepare for a new administration and congress
• 8:09 ‘Inappropriate’ micromanaging: Apple pushes back on anti-DEI proposal
• 13:13 ‘Reverse’ discrimination claims may pose a class-action threat

Transcript

Stacey Nordwall (00:00):

Welcome to Toot or Boot, where each week we talk about news related to HR and the world of work. We toot the news we like and we boot the news we don't like. I'm your host, Stacy Nordwall, a serial joiner of early stage tech companies as their first in or only HR person. And joining us for our Toor or Boot this week. It's like this year, this week it's a new year and it's inauguration day. So my brain is a little bit all over the place, but here we are with Aubrey Blanche-Sarellano Aubrey, welcome.

Aubrey Blanche-Sarellano (00:33):

Hello. I'm so happy to be here. It feels like for people who don't know, Stacey and I worked together at Culture Amp a half a decade ago, so I'm just over the moon to be here.

Stacey Nordwall (00:43):

You know what? Okay, first of all, I know I'm super excited that you're joining. Also, when people say half a decade, I'm like, can we say five years? I feel like half a decade. What? It was so long.

Aubrey Blanche-Sarellano (00:55):

I literally am. I am 19 days away from my five year anniversary at Culture Amp.

Stacey Nordwall (01:01):

Oh my gosh. Okay. Yeah.

Aubrey Blanche-Sarellano (01:06):

I am the furniture at this point.

Stacey Nordwall (01:10):

I believe that. I absolutely believe that. So tell us a little bit about your yourself.

Aubrey Blanche-Sarellano (01:16):

Yeah, so hey everyone. I'm Aubrey. I sort of spent my career accidentally in HR. So I didn't necessarily mean to take this kind of career pivot way back when I got just super cognitively obsessed with this idea of meritocracy in Silicon Valley and what I saw as the utter bullshit of it being preached because I looked upward and I just couldn't make the math math because if you were a meritocracy, the industry wouldn't look like that. So I kind of took a swerve into equity and inclusion work. Then over the past sort of five years at Culture Amp, I still lead the equity and inclusion function, but have kind of added sustainability and philanthropy. So a bit more ESG. And then because of the way we approach equity and inclusion specifically at Culture Amp, we've kind of folded people operations in that. So people ops being kind of systems compliance processes and policies. So think of the service center or the backend of hr, and we can maybe get into that, but we focus much more on the service provisions of HR than on some of the more kind of performative visible stuff in our equity and inclusion work, which is kind of the through line of what my team leads.

(02:29):

I was going to say other thing, I consult with companies on equity issues, responsible technology, talent processes, stuff like that. So equity, fairness, kind of justice and bias is my jam.

Stacey Nordwall (02:40):

Yes. And well, I know even before seeing a number of your posts on LinkedIn recently that all of the stuff we're going to talk about today is super your jam. And so I am very excited to have these conversations with you.

Aubrey Blanche-Sarellano (02:56):

Anti-discrimination law. Yeah, I get real excited.

Stacey Nordwall (03:01):

Okay, we're going to dive in. The first article we have is called How HR Leaders Can Prepare for a New Administration in Congress. This is a little bit of an older one. It's from November of 2024 from HR Brew. The recap is that in this article, the author asks SHRM's Head of Government Affairs, Emily Dickens, how people leaders should prepare themselves for the new administration. Dickens recommendations were first given that Trump has threatened to fire folks who aren't loyal. If you are in HR, particularly in the government or with federal contractors, and that worries you or the culture no longer works for you, you should consider leaving your role. Second, she said, to partner with internal government affairs teams at federal or local levels to have them get to know your business more. And third, she said, examine your existing policies. She said that the company culture should be clear and inclusive, not just the people who are traditionally underrepresented by everyone. And when pressed on how employers could help protect LGBTQ plus employees, her answer was, we always say there's no bad culture unless it's immoral or illegal. And so you have to develop a culture that works for your organization. What are your thoughts? Is that a toot or a boot for you?

Aubrey Blanche-Sarellano (04:21):

I feel like it's more of a boot, and the reason is because I think that advice is not super relevant to the new administration or it's equally relevant. So I think I want to see a world where, again, privileged position, but more HR practitioners are questioning the ethics and morals of their leadership and only working with folks who are moral. So you might have a particular gripe with this administration, and I absolutely do, but my hope is that that's a discussion we've been having regardless of the change of the guard there. So that's part of it. I also just cannot get over, and it's related to the handful of companies who have come out and been like, we want to hire the best people, so we're canceling DEI. It's like, do you know you were doing DEI wrong the whole time? Are you aware?

Stacey Nordwall (05:17):

Yeah. What were you doing?

Aubrey Blanche-Sarellano (05:19):

So I think that's, it just hits a couple of my buttons that I'm like big. Nope.

Stacey Nordwall (05:25):

Yeah, I mean, it was a boot for me for sure. I don't know how much the advice was useful. I think there's always a bit of a challenge for me where it's like, oh, if you don't like it, just leave. And maybe people can't afford to leave, especially if you're talking about people in the federal government, they probably have pensions and things they care about that are important to them. And just leaving is not realistic. And I also think just from especially the things around that the author was trying, it sounded like trying to get her to be specific about how to protect LGBTQ plus employees, and she just couldn't seem to do it. And given some of the non stances or weak stances SHRM has taken in the past, it's like, cool. So you're still going to abandon those folks.

Aubrey Blanche-Sarellano (06:30):

And I guess the thing for me is the lack of saying something that is patently obvious, like trans and otherwise queer employees should be treated fairly. That's not exactly like a spine straight up moral stance. That should be the baseline. And when we know that, depending on the estimates, but some estimates suggest that 82% of trans people have experienced some form of harassment or intimidation in the workplace. The last study I read came out of UCLA. And so if we know the baseline is that horrific things are happening to trans people in the worst place, it is the baseline of what you can do is to suggest that they should be free of discrimination in your workplace. I don't always look to the law to define what's moral, but that's a pretty low bar to say discrimination is illegal and these people who are disproportionately targeted also apply.

Stacey Nordwall (07:32):

Yeah, I mean, I think given some of SHRM'S stances over the last five years, it's not surprising, but still disappointing to your point that they can't say some kind of basic level things like that

Aubrey Blanche-Sarellano (07:50):

If it seems, the fact that that's a spicy opinion in today's day and age is painful.

Stacey Nordwall (07:58):

Yeah. Okay. We'll move on to the next article, which is from HR dive. This one is titled Inappropriate Micromanaging Apple Pushes Back on Anti DEI proposal. The recap here is that the National Center for Public Policy Research, which is a conservative think tank, intends to submit a proposal at the next shareholder meeting requesting for Apple to cease their DEI efforts. Apple advised shareholders to vote against the proposal. The shareholder meeting will happen on February 25, so we'll have to wait and see how that all plays out. What did you think of this?

Aubrey Blanche-Sarellano (08:38):

So I thought this was super interesting in the sense that I was analyzing the particular argument that Apple's making about why it's illegitimate. And I was contrasting this with the way the board of Costco responded. So they landed in the same place, which is like we value our DEI programs, but whereas Costco said basically, you're full of shit and this is not made in good faith, and Apple just said, please leave us alone and trust us to run our business. I think it's really interesting that we're seeing a divergence of pushback strategies, which to me is encouraging because we know that the anti Fairness coalition, I'm going to call it, uses really divergent set of tactics. And so I think it's really heartening to see more arguments being put forth by companies that people are going to listen to. So I would say it's a really good sign.

Stacey Nordwall (09:38):

So this is a toot for me because I did like that, just like, I'm sorry, do you run our company? Are you the CEO? Okay, no, then bye stay out of how we run our company. So I liked that. I liked that they were just like, bye, get out of here. But it is interesting. I hadn't really thought about, to your point, the way in which Costco kind of handled it and said it differently. And it felt like, now that you're saying it, Costco stands felt a little bit more like strong and pointed, and Apples was a bit more reserved and just like, Hey, we're legal and compliant and we're running our business. So that is an interesting counterpoint.

Aubrey Blanche-Sarellano (10:20):

Totally. And I think the reason it is kind of heartening to me is because I think I would put Costco on the spectrum of conservative to liberal over on the side, and they're pretty known culturally for their labor practices that are more to the left. And then you have Ben and Jerry's over here who's suing their parent company over not being able to make political statements. And so I think something that's ultimately unhelpful is when we as advocates, I'm very left. I'm very into social justice, I can speak that language, but that language, lots of research is showing actually tends to be more alienating for a lot of folks in the center. And we can have a debate about whether we should center those people are not. I think that's worthwhile to have, but from a really practical sense, apple is providing a very middle of the way capitalistic justification of why they're going to continue to invest in it. And there's going to be a large number of companies who look to that and say, we can do that too. And so I just think there's a nuance there that a lot of us in the space want to see these Costco esque pushbacks, and that might be emotionally satisfying, but that's not necessarily going to appeal to a broad set of businesses who might choose to be more apolitical in their communications.

Stacey Nordwall (11:41):

Yeah, that's a really good point too. I hadn't thought about is everyone, it seems like when it comes to either the DEI or return to office or these kind of larger conversations, they're all looking at what is Amazon doing? What is Meta doing? What is Apple doing? And in this case and kind of aligning what they're doing to what these other companies are doing. So this gives somebody a to your point, oh, I feel like I can align with that and that makes sense to me, and so I'll also take that tact.

Aubrey Blanche-Sarellano (12:12):

Yeah, absolutely. And so again, personally, it's not the way that I would go or how I would recommend companies that tend to work with me do it just based on the type of culture and political stances that they take. But there's a huge chunk of companies, and I think at the end of the day, it comes down to do we want more people on the team and do we accept that people might have different ways of getting and being on the team?

Stacey Nordwall (12:37):

Yeah, yeah. No, I like that. That is a really good point. And I did not think about, I didn't think about it in that way, but I appreciate it primarily because I was just like, yeah, suck it. But also there are more nuance there, which is good to

Aubrey Blanche-Sarellano (12:56):

Have. But also we love the energy.

Stacey Nordwall (13:02):

And we're moving into our final article also from HR Dive. The title here is Reverse, which is in Little quotes 'Reverse' Discrimination Claims may pose a Class action threat. The recap here is they're saying that after the US Supreme Court's 2023 decision in students for fair admission, there was a barrage of class action lawsuits accusing employers of prioritizing diversity over merit. And that with the rise of class action lawsuits in general, there is potentially an increased risk for companies that they will face these kind of reverse discrimination lawsuits. What did you think of this article in this argument?

Aubrey Blanche-Sarellano (13:43):

So I guess I would give this one a toot in that I think it's super important for practitioners of this space to understand the difference between their ethical frameworks and the way US law is written. And what I mean by that is US discrimination law is group agnostic. So the way that US discrimination law is written, it does not account for historical inequity. It accounts for difference in experience. And so I think it's actually funny that we call it reverse discrimination because from a legal perspective, discrimination is discrimination even if it happens against people from majority group or people who were actively discriminated in favor of for the entire history of the country. And so I think that's really important because what we're talking about is likely a difference in enforcement or a difference in emboldenment from those majority groups. But the underlying laws for the most part, haven't actually changed.

(14:44):

And so I think that sucks, but it's the reality that we have to contend with. And so this has been a soapbox that I'm on for a long time, but if you've been doing equity and inclusion work correctly, for the most part, this should not be a big fucking deal to you. To give an example at Culture Amp, and you probably know this since we were together when we were building this program, is, for example, we audit our performance promotion and pay processes by seven different aspects of diversity and intersectional characteristics. We developed that audit procedure looking at women of color's experience, and basically said, if we can measure women of color's fairness, the math is right now, we will generalize the math out to every group. And so we very much considered a justice and equity lens in the development, but the application of the process is regardless of your identity group, we are looking at the fairness of your treatment in the process. Now, statistically speaking, if there were an issue, it would more likely come to one of those marginalized groups when fact turns out, when you tell everybody you're auditing all their decisions, they tend to make more objective decisions. So it's preventative as well. It's proactive as well as responsive. But I share that because something like that, if someone came to us and was like, you're reverse discriminating, we could point to that program and say, we've actually considered all groups equally.

(16:21):

And so again, if you're doing it right, these things are more for show than they are. And again, vanity litigation is expensive, but I think that points us to there are ways to do this work that's super effective that aren't at risk of these types of lawsuits.

Stacey Nordwall (16:39):

So I am interested in what you think about my reading of it because I gave it a boot.

Aubrey Blanche-Sarellano (16:45):

Oh, tell me more.

Stacey Nordwall (16:47):

So the reason why I gave it a boot, and this is not my area of expertise as it is in yours, and you have much more experience, obviously, but I think that for me, I kind of read it almost as a scare tactic of, okay, companies be prepared now that you're going to get all this class action litigation. And the thing for me was like, okay, you're kind of referencing an increase in data breach class action lawsuits, which seems incredibly different. And that doesn't seem comparable to me. You're kind of talking about, oh, they were saying the landscape is increasingly more plaintiff friendly. And I was like, but who for all plaintiffs, what are we kind of referencing here? And I also kind of thought, isn't discrimination incredibly hard to prove? Generally there aren't many lawsuits about it because the standards are so high. So for me, when I read this, I just felt like they're trying to scare people, scare organizations into backing away through the threat of class action, legal action.

Aubrey Blanche-Sarellano (18:06):

Oh, I totally appreciate that take. And you know what it reminds me of? So there's this book called On Tyranny by Timothy Snyder, and if you haven't read it as an HR person, please go do that. It's incredibly helpful. But I think it's the first chapter is do not acquiesce in advance.

Stacey Nordwall (18:24):

And

Aubrey Blanche-Sarellano (18:24):

I feel like that's the vibe here to your point is do I think it's responsible to do a legal review to make sure that your programs are not at risk there? Yes, be compliant because you have to. So that would number one, but don't cancel shit that's not actually illegal because you're worried about Robbie Uck coming after you. Yes. And so I think it is, do your diligence to double check everything to make sure you're not putting your company at risk in ways that shi your duty to the company, but don't overdo it. Snyder talks about a lot of the ways that fascism takes over is that people acquiesce to what they think the authoritarian wants, and that teaches the authoritarian what space they can take. And so a part of resistance is literally just ignoring planning for, but ignoring that and not doing something until you're asked to change it. And the reality is, even though there's a lot of threats happening right now, there's actually limited power to overturn these kinds of laws in the immediate term.

Stacey Nordwall (19:37):

Yeah, and I think it's something, when I was reading that, it reminded me, I am going to try to find it again because I saw someone's post on LinkedIn and that I could not find it again, but they were analyzing the Facebook memo about them rolling back their DEI, and one of the things that person was saying was exactly what you're talking about. Facebook had kind of cited some Supreme Court decision, and the person was saying, this decision actually isn't even related to DEI programs within the workplace. So in citing this, you are essentially complying to a thing that hasn't even happened yet.

Aubrey Blanche-Sarellano (20:18):

Yeah, exactly. And I think we're going to see this, but what we're also seeing, and again, I can't speak to meta specifically, but I think that there's a lot of businesses that were looking for an excuse not to invest in those things. And so you're going to see this mix of folks who pull back on their investment, some of which who just are afraid and haven't thought hard enough. And then there was this group who never wanted to do it in the first place. They felt some pressure after George Floyd was murdered. And so this is a pretense for them to operate openly the way they have always operated. And so I just think it's important. I also think it's really important as we see this backlash, the news loves to report the companies that roll back programs. Mostly the news is uninterested in reporting on companies that are saying the course. And so just be aware that our brain has a really intense negativity bias. And so meta is not necessarily a good example of what the average business is doing.

Stacey Nordwall (21:26):

Right? Absolutely. Which is

Aubrey Blanche-Sarellano (21:27):

True in a lot of ways.

Stacey Nordwall (21:29):

I was going to say, I think that that's also the case. Yes. Alright, awesome. Those are our three articles. I appreciate your input on these so much because you absolutely had view perspectives that I didn't have, so I feel much better about my understanding of it all. For anyone who wants to connect with you or know more about what you're doing, how can they do that and what would you like to tell us about?

Aubrey Blanche-Sarellano (21:55):

Yeah, so folks can just get me on LinkedIn. It's my kind of digital soapbox and I've got a funny name, so I'm easy to find. And then if folks are interested in having an actual conversation or working with me on something, you can just find me@aubreyblanche.com.

Stacey Nordwall (22:10):

All right. Awesome. Thank you so much for joining.