Reaffirming the Affirmative Action (original) (raw)

Diversity as a Trade Secret

LSN: Labor & Employment Rights (Topic), 2019

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 secr...