The Case for Candor: Application of the Self-Critical Analysis Privilege to Corporate Diversity Initiatives

Diversity has become an increasingly important part of American corporate culture in the past several decades, with companies devoting significant resources to the assessment of diversity and the implementation of plans to improve demographics, employee relations and morale. Attempts to undertake these diversity initiatives are greatly limited, however, by concerns over potential legal liability. Counsel, apprehensive that documents and other information regarding diversity issues and corrective measures may subsequently be used as evidence by plaintiffs in discrimination lawsuits, often discourage or veto outright the institution of diversity studies and programs. Ironically, these objections preclude initiatives that might reduce the amount of employment litigation faced by a company in the long run. They also result in an environment where open discourse on important issues is stymied, to the detriment of the workforce at-large.One possible solution to this problem is the application of the self-critical analysis privilege to documents and other information regarding corporate diversity initiatives. The self-critical analysis privilege, which is well-established in other areas of the law, has developed in the federal common law for exactly this purpose – to permit organizations to engage in candid self-examination which has institutionally and socially desirable benefits. However, courts have largely declined to recognize the self-critical analysis privilege in the employment context.This article establishes that the self-critical analysis should be recognized with respect to employment documents, such as diversity studies. It begins with an examination of the role of diversity in today’s corporate culture and the ways in which companies seek to assess and improve diversity. The article then analyzes the evolution of the privilege in the employment context. It focuses on the reasons for the courts’ historic rejection of the privilege, including: 1) undue reliance upon Supreme Court jurisprudence involving the discoverability of peer reviews in a faculty tenure process, a scenario which is not factually analogous to the issue of employment documents generally; 2) misapplication of the criteria that must be assessed to determine whether the self-critical analysis privilege should apply in a particular case, specifically, a preference for bright-line tests at the expense of the balancing analysis that is at the heart of the privilege determination; and 3) failure to recognize the changing nature of employment law, as reflected in more recent Supreme Court cases emphasizing the primacy of preventative measures by employers in effectuating the purpose of federal anti-discrimination laws. The article demonstrates that by revisiting outdated and flawed assumptions regarding the respective roles of prevention and remediation in discrimination law and revisiting this framework shift, courts can and should recognize the self-critical analysis privilege for employment documents such as workplace diversity initiatives. Finally, it proposes that by engaging in a nuanced balancing test that weighs the relative benefits and harm that would arise from disclosure of the documents in a particular case, courts can create a well-tailored and clearly defined privilege on which companies may rely, thereby encouraging corporate self-examination that will improve diversity and workplace relations, while still ensuring that plaintiffs have access to the information they need to pursue their claims.