Many individuals interested in diversity and inclusion have been following the case of Samantha Niemann v. The Getty Foundation. The case is venued in California and based upon California’s anti-discrimination laws. Ms. Niemann, a Caucasian college student at a southern Utah college with a 3.7 GPA, filed suit against The Getty Foundation, alleging that it discriminated against her because she was white and discouraged her from applying for its Multicultural Internship Program.
The case raises a host of issues with respect to the validity of the claim against a private institution and those issues will not be addressed in this article. However, we will address the issue of defining diversity as broadly as possible to enrich an organization and minimize the possibility of legitimate legal claims.
By way of background, since 1993, The Getty Foundation, a private organization, has offered and administered a Multicultural Internship Program, where it and approximately 60 other participating institutions provide summer internships to students who are members of groups traditionally underrepresented in the high-level staffs of museums and visual art organizations. Getty and many other art institutions and foundations realized that inclusion into the art world by non-Caucasians was important, or interest in the world of the fine arts would continue to decline and potentially lose relevancy. Over this time period, The Getty Foundation has supported over 3,000 internships and 152 organizations throughout the country in their goal to bring more diversity to the fine arts. The internships are highly competitive and draw applicants from many of the nation’s most prestigious colleges and universities, and have become a mark of distinction for those applying for full-time positions at the nation’s leading art institutes and museums.
The purpose of the program is to provide vital professional experience to members of minority groups who remain sorely unrepresented in the world of fine art and its professional ranks. As noted by a survey conducted by the Andrew W. Mellon Foundation, in , 84% of “curators, conservators, educators and leaders” positions at museums are occupied by Caucasians, and about 70% of those high level positions are occupied by women. A 2012 U.S. Census data evaluation found that nearly four out of five people who make a living in the fine art are Caucasian. Arts administration jobs are also skewed overwhelmingly to Caucasians. A National Endowment for the Arts study of cultural institutions also found that “91% of board members were white, 4% were African American or black, 2% were Hispanic, and 3% were in the ‘other’ category.” Accordingly, there can be no argument that the world of fine art required diversity and The Getty Foundation developed the internship program to address the issue.
However, over the years our concepts of diversity and inclusion have continued to develop and broaden. In the 1990s, solely focusing on and emphasizing the inclusion of minorities in areas of society where they were underrepresented would pass muster. However, in today’s society such a narrow approach, which does not include other underrepresented or disadvantaged individuals or groups, defeats the concept of creating an inclusive and diverse society. The Getty Foundation’s initial description of the program encompassed its immediate goal but not the entire concept of the program. The initial description of the program stated as follows:
The internship positions are intended specifically for students who are members of groups traditionally underrepresented in the staffs of museums and visual art organizations, . . . those of African American, Asian, Latino/Hispanic, Native American and Pacific Islander descent.
The definition as written appears to exclude disadvantaged Caucasian applicants. However, as the Getty Foundation has pointed out, it has in the past and before this lawsuit, included disadvantage Caucasian applicants in the internship program. To make the inclusive nature of the program more apparent and transparent, The Getty Foundation has modified the eligibility criteria for the 2016 program as follows:
Applicants must be members of an under-represented group including but not limited to those of African American, Asian, Latino/Hispanic, Native American, or Pacific Islander descent.
The second statement regarding eligibility for the program is a much broader and inclusive statement. Although it defines certain groups as underrepresented, the statement does not exclude anyone from applying and participating in the program that meets the requirement of underrepresented groups.
The whole idea behind diversity is not to exclude any set of individuals, but that by inclusion of all groups we make a stronger community and society. The biggest take away for any organization when developing or implementing its diversity program or initiative is not to think narrowly but to think broadly and to attempt to incorporate all individuals and groups. Now with respect to Ms. Niemann, a student with a 3.7 GPA and of German/Italian/Irish descent, with no other stated reason of how she is representative of an underrepresented group within the world of fine art, she probably still would not qualify for the internship program under the new definition. But, those Caucasian students that do come from backgrounds which are historically excluded from the fine arts are eligible to continue to seek out and participate in the programs.
The Getty Foundation is to be applauded for its efforts of creating the Multicultural Internship Program for underrepresented individuals to work in the fine arts and its realization that updating the eligibility requirement for the program helped to accomplish the goals of diversity and inclusion of all underrepresented individuals. The Getty Foundation had kept up with the times with its practices by accepting applications from Caucasian applicants that could demonstrate that they were underrepresented in the world of fine arts. However, the original program description did not make that point clearly. The new and updated language of the criteria, which is changed ever so slightly, makes the point clearly and is more inclusive.
So what can we take away from this case with respect to diversity and inclusion? One thought is when thinking about diversity, think how to broadly define diversity and inclusion to accomplish your organizations goals. If your organization’s diversity statements were drafted several years ago, it may not be a bad idea to take another look at them and determine if they are as broad and inclusive as you would like them to be to accomplish the mission of your organization’s diversity and inclusion plan. By doing so, your organization can accomplish its goals of strengthening and enriching itself through diverse and inclusive practices and prevent little speed bumps such as presented in the Niemann lawsuit.
About the Author
Wesley Payne is a partner with White and Williams LLP, where he chairs the Diversity Committee. He also is immediate past chairman of the Philadelphia Diversity Law Group, which works to increase diversity among Philadelphia area law firms and corporate law departments. He can be reached at paynew@whiteandwilliams.com.