Document Type

Article

Publication Date

2018

Abstract

Throughout history, women and racial minorities have been excluded and marginalized in the United States workforce. Many of the industries that dominate the economy in wealth, status, and power continue to struggle with a lack of diversity. Various stakeholders have been mobilizing to improve access and equity, but there is an information asymmetry that makes this pursuit daunting. When potential plaintiffs and other diversity advocates use FOIA and discovery requests to access relevant employment information, many companies have responded with virulent attempts to maintain secrecy. To conceal this information, 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. When we think of trade secrets, we often think of famous examples such as the Coke formula, Google’s algorithm, or McDonald’s special sauce used on the Big Mac sandwich. In this essay, 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. Instead of hiding information, I argue that diversity data and strategies should be treated as public goods. This type of open model will advance the goals of equal opportunity law by raising awareness of inequities 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 Georgetown Law Journal (forthcoming)

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