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When we think of trade secrets, we often think of famous examples such as the Coca-Cola formula, Google’s algorithm, or McDonald’s special sauce used on the Big Mac. However, companies have increasingly made the novel argument that diversity data and strategies are protected trade secrets. This may sound like an unusual, even suspicious, legal argument. Many of the industries that dominate the economy in wealth, status, and power continue to struggle with a lack of diversity. Various stakeholders have mobilized to improve access and equity, but there is an information asymmetry that makes this pursuit daunting. When potential plaintiffs and other diversity advocates request workforce statistics and related employment information, many companies have responded with virulent attempts to maintain secrecy, including the use of trade secret protection.

In this Article, I use the technology industry as an example to examine the trending legal argument of treating diversity as a trade secret. I discuss how companies can use this tactic to hide gender and race disparities and interfere with the advancement of civil rights law and workplace equity. I argue that instead of permitting companies to hide information, we should treat diversity data and strategies as public resources. This type of open model will advance the goals of equal opportunity law by raising awareness of inequalities and opportunities, motivating employers to invest in effective practices, facilitating collaboration on diversity goals, fostering innovation, and increasing accountability for action and progress.

Publication Citation

107 Geo. LJ 1684 (2019)