October 22, 2019

October 22, 2019

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October 21, 2019

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Healthy Workplace Discussions About Diversity, Part 2: Explaining the Foundations of Support for Organizational Diversity and Inclusion

Only just a few days ago, Virginians like me were marking the second anniversary of the violent clashes in Charlottesville that erupted when white supremacists marched through town for the deadly and contemptible “Unite the Right” rally in 2017. How ironic it seemed that alt-right and neo-Nazi marchers would choose that particular college town as the site for their controversial rally and anti-Semitic chants, given that the University of Virginia is the place built by the very man who wrote America’s founding words – “that all men are created equal.” As I reflected on those events in Charlottesville, I was reminded, however, that even Jefferson, source of those still-inspiring words and “Father of UVA,” was a slave owner. Even he failed in some measure to connect the dots between the values he articulated and the life he lived in the real world. In 2019, as public debates about all kinds of diversity abound, perhaps we ought to acknowledge that there is something about human nature that occasionally fails to connect dots, that somehow misses the connection between deeply held values and the real-life implications of those values in our communities, our workplaces, and our public policy.

As I write today, for readers who are mostly attorneys, I’m aware that many of you have responsibilities related to diversity and inclusion within your organizations. Among your job duties, many of you are charged with speaking to colleagues, co-workers and others about those topics. Those colleagues and co-workers are regular human beings, of course, so we can expect that they, too, will sometimes have difficulty connecting the dots, like everyone else. In fact, as I mentioned in the first installment of this article series [1] , recent surveys by the Pew Research Center [2] indicate that a substantial minority of Americans hold negative opinions about diversity in their neighborhoods or workplaces. We can assume that some of the Pew survey respondents who felt that way are persons within our organizations. While Pew’s research did not investigate this question, I anticipate that many of those same persons would express support for the notion that all persons are worthy of equal respect and equal dignity – the “American principle.” To the extent they are merely failing to connect dots between their stated values and the idea that diversity in our workplaces is something worthy of pursuit, and to the extent they are part of the communities where you and I work, we can do something about it. We can have healthy conversations and help connect the dots. But how?

In this short article, allow me to briefly remind readers of three ideas that form a solid foundation for the diversity initiatives within our respective organizations. It’s my modest hope that this quick reminder will help readers find words that facilitate healthy discussions within your workplaces. Let’s quickly connect the dots.

First, we support diversity and inclusion because it’s the right thing to do. We aspire to be organizations that embody the belief that every person really is worthy of dignity and respect, possessing unique strengths and insights and potential. We don’t seek to be diverse and inclusive organizations only because the law requires it, nor simply because our customers demand that we do so. We don’t offer lip service to diversity and inclusion only because it will help our recruiting and retention, even though our recruiting and retention efforts will indeed benefit. When we discuss diversity within our workplaces, it’s important that we start with a reminder that our support for diversity isn’t merely instrumental, not merely a means toward some other end, where that other end is our real goal. Supporting diversity and inclusion is an end in itself, because we want the values of diversity and inclusion to be core to our organizational identity.

Speaking out loud and intentionally about diversity as a bedrock organizational value is important, because silence holds far more potential for misunderstanding and, frankly, failure. At minimum, when our colleagues express negative attitudes toward diversity, being silent in response allows the speaker to conclude that we agree, or at least that we don’t disagree strongly. If enough persons fail to respond to negative statements or attitudes, experience teaches us that the individual may conclude that his or her attitudes are widely shared. Permitting that kind of environment is a recipe, sooner or later, for failing actually to serve the goals of diversity and inclusion. Perhaps, for example, the individual in question has authority to make hiring or promotion decisions, so we want that individual to be very clear what the organization values. Silence about our support for diversity and inclusion just isn’t a good option.

Even if policies in employee handbooks are sufficient for compliance purposes, we should remember that ordinary policy statements might communicate nothing more than the idea that your organization is careful about complying with its legal obligations. That’s a good thing, of course, but mere compliance is not enough if we intend to make our organizations the best they can be. Our colleagues already understand that our organizations have legal duties, but written statements requiring our colleagues to meet legally mandated standards says nothing about our expectations regarding the hearts and minds and values of the persons who are subject to the policies. If we wish to build organizations that achieve more than grudging compliance, and if we aspire to be organizations that actually embrace diversity, we will need to say so out loud and repeatedly. Policy statements alone do not build positive cultures. Healthy conversations can.

But, of course, we do also have legal compliance obligations regarding diversity and inclusion. When you have conversations about diversity at work, it’s also important to underscore the second reason we must support diversity and inclusion: the law requires it. Over time American law has evolved to address forms of discrimination that have plagued our history, like refusals to hire or promote individuals based on gender, race or national origin. It is complicated law that is not always intuitive to non-lawyers (or even to lawyers who don’t specialize in employment law or anti-discrimination law), so education in our workplaces is necessary, and always will be.

Our colleagues need to learn that a compliance mindset should be second nature. I encourage you to remind your communities that, when we are confident that our co-workers genuinely share our core values regarding diversity, as described above, identifying and correcting non-compliance accomplishes much more than obeying the law – it also helps us demonstrate those values and reinforce the culture built on those values. In other words, more than simply doing what we must do, identifying and correcting non-compliance helps achieve what we independently want for our organizations. Perhaps the best compliance program, therefore, is the one that actually cultivates appreciation for the values of diversity and inclusion.

Summing up thus far, we support diversity and inclusion because we should and we must. But if moral arguments and compliance requirements aren’t enough to make our co-workers enthusiastic about diversity and inclusion, we can, of course, remind them that diversity and inclusion also serve our organizations’ enlightened economic self-interest: diverse organizations perform better, and research has indicated that diverse organizations are more profitable. Numerous articles have explored in detail the 2015 research published by McKinsey & Company [3] , so I will not repeat those detailed summaries here, but key takeaways include the finding that “Companies in the top quartile for racial and ethnic diversity are 35 percent more likely to have financial returns above their respective national industry medians.” [4]

Superior financial results may result, at least in part, from the fact that diverse teams are often more innovative. As the Harvard Business Review explains, “Hiring individuals who do not look, talk, or think like you can allow you to dodge the costly pitfalls of conformity, which discourages innovative thinking.” [5] Supporting diversity and inclusion can therefore simply make our organizations better, both in terms of financial performance and in the innovative delivery of our products and services.

It is not difficult to understand the reasons why diversity supports higher performance. By including diverse persons, our organizations gain the benefits of diverse backgrounds and experience. Including persons with fresh perspectives in our operations and management means that our organizations have opportunity to benefit from ideas they might not otherwise consider.

I work in the tech industry and represent tech companies (software, Internet services, big data, etc.), and that industry has given us an excellent management concept that is particularly helpful for understanding the benefits from including diverse perspectives within our organizational decision-making. In his 2011 book, “The Lean Startup,” [6] Eris Ries taught companies to have the discipline and humility not to assume they could anticipate and define all the needs, wants and requirements of the marketplace, and not to think they could create a perfect product before ever launching one. Instead, companies are advised to offer products and services to the marketplace, gather feedback, refine the offering (or “adapt and pivot,” as Ries would say), re-launch, and then repeat the process. Launch, listen to feedback, iterate. Assuming a marketplace with diverse people, whose needs, wants and requirements are similarly diverse, a company is well-advised, counsels Ries, to listen to the marketplace’s diverse perspectives.

Diversity and inclusion within our organizations serves a similar function to the process described in The Lean Startup. When our organizations are less diverse, we are less likely to consider perspectives outside our own experience. That’s just normal human nature. As a perfect illustration, consider the case of automated soap dispensers found in public restrooms. Now the stuff of urban legend, social media is full of videos showing “racist soap dispensers” that will activate for persons with lighter (white) skin, but that refuse to activate for persons of color. While it’s unlikely that the manufacturers of those soap dispensers ever intended to discriminate against any category of people, they nevertheless failed properly to calibrate the infrared sensors beneath the dispensers in a way that would account for darker skin – a defect that might easily have been avoided, if only the design teams had included the input of persons of color. How many other products and services might be improved by inclusion of additional, more diverse perspectives in the process of design and delivery?

This reality is sometimes frightening to lawyers in big firms. Increasingly, clients and prospective clients are telling firms that the teams of attorneys who provide legal services must include greater diversity. Some firms object, arguing that, while their diversity goals haven’t yet been achieved, they do share core values regarding diversity and inclusion, they do steadfastly comply with all legal standards regarding diversity, and they do undertake active efforts to recruit, retain and include the perspectives of diverse attorneys. Consequently, they argue, their firms should not be overlooked by prospective clients who fault the firms for inadequate diversity stats. Give them time, they insist. In response, we should acknowledge the good efforts of many in the legal industry who are working to overcome its historically abysmal lack of diversity. We should assure our fellow attorneys that they are not losing business merely because they haven’t yet reached their goals. I find myself repeatedly reminding fellow attorneys, however, that requiring diversity in the ranks of our legal advisors isn’t only about correcting past societal wrongs or achieving compliance with legal standards. It’s about getting the best possible legal advice, knowing that the best advice is likely to result from diverse teams of attorneys that incorporate diverse perspectives. Until firms actually achieve higher standards for diversity and inclusion, if they lose business, it’s because prospective clients have concluded that such firms just aren’t the best options for the best advice. Law firms will simply need to embrace this reality and step up to the challenge: We pursue diversity precisely because it will help us provide better, more innovative legal advice.

Summing up, support for diversity and inclusion within our organizations is right for a variety of reasons. It’s the right thing to do morally. It’s also necessary for compliance with the law. And ultimately it makes our organizations more successful. As lawyers, we know that diverse teams permit the inclusion of diverse perspectives, facilitating innovative thinking, and that enables better service and better legal advice.

In the articles that follow in this series, I’ll continue this discussion by considering expanding concepts of diversity, and will explore concepts of implicit bias in the workplace. Diversity and inclusion are too important not to pursue healthy discussions on an ongoing basis within our organizations. Please join the conversation.

 


[1] “Healthy Workplace Discussions About Diversity, Part 1: Remembering why we became lawyers, and why that matters for diversity,” by Todd W. Harris, June 3, 2019, https://www.natlawreview.com/article/healthy-workplace-discussions-about-diversity-part-1-remembering-why-we-became

[2] See “Americans See Advantages and Challenges in Country’s Growing Racial and Ethnic Diversity, May 8, 2019, at https://www.pewsocialtrends.org/2019/05/08/americans-see-advantages-and-challenges-in-countrys-growing-racial-and-ethnic-diversity/

[3] “Why Diversity Matters,” by Vivian Hunt, Dennis Layton, and Sara Prince, January 2015, https://www.mckinsey.com/business-functions/organization/our-insights/wh...

[4] Id.

[5] “Why Diverse Teams Are Smarter,” by David Rock and Heidi Grant, Harvard Business Review, November 4, 2016, https://hbr.org/2016/11/why-diverse-teams-are-smarter

[6] The Lean Startup , by Eric Ries, published in the United Stated by Crown Business, copyright 2011, ISBN: 978-0-307-88789-4

Copyright © 2019 Womble Bond Dickinson (US) LLP All Rights Reserved.

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About this Author

Todd Harris Technology Lawyer Womble Bond Dickinson
Partner

A Technology Transactions Partner and Adjunct Professor for Georgetown University Law Center in Washington DC, Todd Harris advises technology companies around the globe in connection with creation, commercialization, and disposition of information technology, proprietary software and data assets, including licensing and related regulatory compliance. He also regularly provides intellectual property counsel in connection with tech-centric mergers and acquisitions.

Todd helps clients craft strategies and programs for intellectual property protection, including trade secret and...

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