Diversity and Inclusion: More Than an Invitation to Join

An interesting cartoon making the rounds on the internet is relevant to any discussion about diversity and inclusion. It depicts a two-lane race track with two competitors at the starting line. The right lane is littered with obstacles ranging from barbed wire to an alligator pit and a wall with spears jutting straight into the air. In this lane is a physically fit woman of color in athletic clothes and a serious game face. Her right ankle is chained to a heavy metal ball. The left lane, on the other hand, has two low bars scattered in its path and a middle-aged white man in a business suit with a genial smile on his face. The caption at the bottom reads, “What’s the matter? It’s the same distance!” Well actually, everything is the matter.

The traditional approach to diversity and inclusion (D&I) is to focus on changing the female competitor. She will be told that to get to the finish line, she has to a better athlete, exercise more, practice more, wear better shoes, buy different clothes, get rid of that game face and smile more, get a better trainer, etc.

Nothing will be said about the obstacles placed in her path. Nothing will be said about the lack of obstacles in the white man’s lane. Nothing will be said about his privilege. His male privilege. His white privilege. Nothing will be said about a system that allows and perpetuates this inequity. It’s all about what the woman of color has to do, say, and look like to conform to the dominant paradigm of success established by white institutions and structures.

And we wonder why people of color aren’t in the race or drop out halfway. It’s not about their skills or drive. Far from it.

This cartoon is a good analogy for the legal profession and why law firms have not made major headway in recruiting, hiring, retaining, and promoting diverse lawyers, particularly people of color. For so many years, lawyers of color were told that if we dress a certain way, attend a certain school, and associate with certain people, we will make it. It seems quite an easy formula for success. But the formula is flawed because it ignores the “obstacles” (e.g., institutionalized racism and sexism) inherent in the system.

This traditional approach is now passé. The resources poured into mentorship programs and pipeline projects were ineffective at creating a diverse and inclusive work environment.

A new D&I approach is emerging in its place. This one is not about changing people, but about changing the system. The new approach is based on data and has measurable goals and metrics. It sounds promising. Efforts like “Move the Needle Fund” are trying to implement this new approach among its collaborating law firms and legal departments to make them diverse and inclusive. We await the results of these collaborative efforts.

While law firms and legal departments experiment and adopt new approaches to addressing D&I issues, we should remember a couple of things. First, all women and people of color neither share the same disadvantages nor experience the same inequities. So it’s important to make sure that any D&I programs that focus on gender diversity do not end up prioritizing white women. Their experiences are not normative or representative of all women. Using an “all women” umbrella as a measure of a firm’s diversity ignores an integral element of diversity — the intersectionality of race, class, ability, and other categories of marginalization.

Second, diversity and inclusion should not end with just hiring, retaining, and promoting lawyers of color. It’s also making sure that they are at the table where important decisions are being made. A promotion is meaningless if that position does not come with decision-making authority. This requires an honest assessment of whether the table is really full, or whether it could be expanded to make space for lawyers of color. If the table is full, then someone at the table must step down or give up their seat to ensure that diverse voices are truly present and included.

A seat at the table for lawyers of color means more resources, opportunities, and power to make important decisions that have a large impact on the firm and legal community, including decisions about diversity and inclusion. It’s letting people of color have a real say in how to change a system that has kept us down or out.

This can be hard to do. This is where the walk fails the talk. It’s hard not to be in charge. It’s hard to redistribute power. It’s even harder to give up power. But if we are truly committed to diversity and inclusion, then white people need to be prepared to give up their seats at the table. Anything short of this is tokenism.

Some would argue that simply removing the obstacles in the female athlete of color’s lane is a sufficient remedy to ensure diversity and inclusion. That approach may solve the problems for that one female athlete of color or for that particular race. It fails to address the systematic or structural issues faced by others in the same or similar position as her. Further, removing the obstacles does not guarantee her unbiased treatment at the finish line. It is just one of many steps.

About the Author

DaoHong Dao is a practice management attorney at the Oregon State Bar Professional Liability Fund, and is a member of the Law Practice Division’s Diversity and Inclusion Committee.

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