I. INTRODUCTION
Diversity, equity, and inclusion (“DEI”) in the workplace is a complex issue at any time and in any organization. However, in this time of great upheaval—COVID-19, a renewed racial reckoning in the United States, and increased climate consciousness and social justice awareness—profound issues about work and the role of organizations are being raised simultaneously. This confluence of systemic issues highlights three critically important broad concepts that can help evolve our approach to addressing workplace inequities.
First, what we consider “normal” workplace practices has been upended.Footnote 1 For instance, organizations have been forced to think more broadly about how and where work gets done. Many organizations, including law firms, never before would have thought it possible to run a successful law firm with a majority of attorneys and staff working remotely. Yet, it is being done.Footnote 2 Additionally, although many organizations espoused the bottom-line benefits and the business case for diversity and inclusion prior to the killing of George Floyd, rarely did an organization privately, let alone publicly, decry the moral injustice of systemic, structural, or institutional racism. Yet, now it is being done.Footnote 3 These shifts in practices beg the questions: What else can we do that has not yet been done? Can we upend the “normal” way we have approached diversity, equity, and inclusion work so we can improve outcomes for individuals from marginalized identities?
Second, intertwined systemic issues are coming to the forefront, and it is difficult to separate the issues from one another. The issues are inter-related, causing a cascade effect that is not necessarily additive. For example, the disproportionate impact of COVID-19 on individuals from marginalized identities, specifically Black and Latinx communities, stems from structural inequities in the health care system, the unavailability of economic and employment opportunities, as well as limited environmental planning choices in neighborhoods traditionally occupied by Black and Latinx communities, among other factors.Footnote 4 It is difficult to address the disproportionate effect of COVID-19 on these communities in any permanent way without recognizing and addressing the common underlying structural inequities that run through each of these respective systems. This situation mirrors the identity-based concept of intersectionality introduced by Professor Kimberlé Crenshaw.Footnote 5 In my mind, intersectionality matters whether at the individual, organizational, or societal level, and the impact of policies, practices, and behaviors ripple through multiple aspects of one’s daily experience. How, then, can we leverage what we learn about intersectionality to advance equity and inclusion?
Third, the actual day-to-day and overall pattern of experiences of individuals from marginalized backgrounds matters and cannot be ignored. The concept of inclusion is both objective and subjective. It can be objective in that efforts and initiatives aimed at inclusion are often meant to be unbiased and without prejudice on the part of organizations and those implementing proposed solutions. Meanwhile, inclusion can also be subjective in that success is dependent upon the personal feelings and experiences of others. If the individuals that the organization is seeking to include do not actually perceive or experience themselves as being included, the objective efforts cannot be successful. The ideal form of inclusion means that one is not experiencing various forms of discrimination or bias and instead feels welcomed, valued, appreciated, and accommodated. Therefore, the reduction and eventual elimination of bias and discrimination is an important and necessary part of achieving an inclusive workplace.
In the legal profession, real opportunities exist to reexamine, reenvision, and transform the profession at multiple levels through upending “normal,” adopting an intersectional approach, and implementing targeted solutions to positively influence the real-world lived experiences of attorneys from underrepresented backgrounds. The first phase findings from the Blanck et al. study provide preliminary insights into some of the inequities experienced by attorneys—namely, various forms of subtle and overt bias and discrimination.Footnote 6 The study’s methodology is a step in the direction toward a more holistic and intersectional approach and can serve as a springboard for developing cross-identity solutions for inclusion.Footnote 7 These solutions can be strategically targeted at improving the workplace experience of attorneys.
In this Comment, I will offer my thoughts on the potential impact of the Blanck et al. research findings from the macro to micro levels—from the legal profession, to DEI practitioners in legal settings, and then to individual attorneys. I will also posit possible practical uses for the research. As the research findings are preliminary, my opinions are similarly preliminary and not set in stone. The possibilities, however, are quite exciting and leave me hopeful that we can further advance the profession.
II. WHAT IS THE IMPACT OF THIS RESEARCH AND WHAT DO THE FINDINGS MEAN FOR THE LAW?
The intersectional approach of the Blanck et al. study illuminates the nuanced experiences of bias and discrimination in the legal workplace that cannot be captured fully through analyzing legal complaints and other official reports of discrimination. Equal Employment Opportunity Commission (“EEOC”) charges, complaints, and litigation are important data points in understanding discrimination;Footnote 8 however, the data only reveal potentially the most egregious acts of discrimination in limited circumstances.Footnote 9 EEOC data does not shed light on the day-to-day experiences of attorneys or the interplay of identities.Footnote 10
The law plays an essential role in creating greater access and opportunity. It is also an important factor in establishing legal boundaries for acceptable and unacceptable workplace policy, practice, and behavior. Title VII of the Civil Rights Act (“Title VII”) is a piece of landmark legislation that seeks to level the playing field for job applicants and employees by prohibiting employers from discriminating on the basis of race, color, gender, religion, and national origin.Footnote 11 Similarly, Title I of the Americans with Disabilities Act (“ADA”) is the keystone legislation for disability rights that prohibits employers from discriminating on the basis of an applicant or employee’s disability.Footnote 12 The spirit of each law is to provide equal employment opportunity for certain marginalized identities.Footnote 13 These strong pieces of anti-discrimination legislation are foundational, necessary, and valuable in advancing equity in the workplace. They provide a threshold definition for legally actionable discrimination and a means for holding employers accountable when they violate the law.
Moreover, through various forms of EEOC enforcement of Title VII and the ADA, particular incidents of discrimination can be redressed. In addition to pursuing individual complaints, the EEOC’s systemic enforcement strategy allows it to directly address “pattern or practice, policy and/or class cases where the discrimination has a broad impact on an industry, profession, company or geographic location.”Footnote 14 In these systemic enforcement cases, the remedy is injunctive relief and/or monetary damages.Footnote 15
Anti-discrimination laws and their subsequent enforcement through the EEOC, however, do not and cannot capture all of the behaviors and experiences that can contribute to inequitable experiences of bias in the workplace, including bias and subtle discrimination based on intersecting identities. This observation is borne out of the Blanck et al. findings, which suggest that intersectionality may impact how subtle and overt bias manifests in legal organizations.Footnote 16 In the aggregate, it appears that different permutations of identities such as race, gender, sexual orientation, and disability correspond to differing experiences of subtle and overt bias and discrimination—particularly, subtle discrimination.Footnote 17 Specifically, the findings demonstrate that having a disability, reporting a mental health condition, being a woman, identifying as LGBQ, or being a racial or ethnic minority increases the likelihood that one will report experiencing subtle or overt bias.Footnote 18
This is not to say that legal employers are violating Title VII, the ADA, or other non-discrimination laws. Nor is this Comment meant to be a legal argument or attempt to state a prima facie case for unlawful discrimination; rather, it is an observation of how the law alone and isolating identities produce only a partial view into discrimination. It reveals a limited scope of the problematic experiences occurring in legal workplace settings. It also shows how the remedies available under the anti-discrimination laws do not reach the subtle forms of bias and discrimination that attorneys from marginalized identities face. Knowledge of legal requirements and the ramifications for violating the law is not enough to make the profession diverse, inclusive, and equitable. As lawyers, we need to uphold, enforce, and promote not only the letter of the non-discrimination law, but the spirit of the law as well. Furthermore, even though we cannot legislate out bias and microaggressions—the subtle forms of discrimination attorneys reported in the study—the study findings demonstrate that these subtle forms of discrimination are occurring. If we truly want to understand the climate in legal workplaces and create an inclusive environment for all attorneys regardless of identity, we must go beyond first-level data and delve into the intersectional experience, as done by Blanck et al. In this way, significant insights can be gleaned, which can lead to developing better strategies for improving the workplace experience of attorneys from underrepresented backgrounds.
III. WHAT IS THE IMPACT OF THIS RESEARCH AND WHAT DO THE FINDINGS MEAN FOR DEI PRACTITIONERS?
Based on my professional knowledge and experience, the Blanck et al. research can provide a basis for developing a more unified approach to diversity, equity, and inclusion in at least three respects. First, the study can help DEI practitioners in the legal industry understand and interrupt bias across multiple identities rather than focus exclusively on one identity at a time. Second, it can help practitioners incorporate the significance of nonvisible marginalized identities when considering bias intervention strategies. Third, this research can help practitioners in developing an overarching strategy for culture change in the profession.
Before diving into how practitioners can use the research findings in DEI work, it must be said that the high level at which attorneys from marginalized identities report experiencing subtle or overt bias or discrimination is quite notable and should be unsettling. Having these experiences quantified is helpful in establishing the issue’s scope and provides the potential to measure progress over time.
First, regarding bias interruption, the Blanck et al. research looks at reported experiences across identities—both individually and collectively—which is relatively unique.Footnote 19 Though intersectionality is a well-recognized concept in the diversity field, many DEI strategies still focus on single identities, even though our identities do not exist in isolation, nor do attorneys from particular marginalized identities operate in isolation from attorneys from other, differing marginalized identities.Footnote 20 In other words, it is increasingly possible that a single attorney has multiple marginalized identities. Likewise, attorneys from one set of marginalized identities interact with attorneys from both majority identities, as well as other marginalized identities. This probability creates a certain level of complexity, which must factor into and inform how practitioners develop bias interruption tools. Although increasing awareness around the specific experiences and history of particular identities remains important, it is imperative that practitioners move toward a holistic and intersectional approach when developing DEI solutions.Footnote 21 Understanding and utilizing the insights from Blanck et al.’s research findings could help make bias and discrimination interruption non-identity specific—i.e., help practitioners teach bias interruption skills to those with and without marginalized identities that will be used across interactions with colleagues from any identity.
Second, analyzing the reported experiences of individuals who may have nonvisible or nonobvious marginalized identities such as attorneys with certain chronic health conditions, other nonvisible disabilities, and attorneys who are LGBTQ+ offers a valuable vantage point into the culture of legal workplaces. Specifically, studying the reported experiences of attorneys with nonobvious diversity may reflect what colleagues say or do when they do not realize they are interacting with someone with a marginalized identity—i.e., in “mixed” company. This inference can be extended to close connections of colleagues as one may not know the relationships a colleague has with a person of a marginalized identity outside the workplace. For example, one may not know that your colleague is gay, has a history of substance abuse, or if their significant other or other family members have marginalized identities. Nevertheless, the biased or discriminatory conduct may still have a negative impact and can erode an attorney’s sense of inclusion.
This inference can be extended to those who witness bias or discrimination. From faculty and staff workforce surveys conducted through my work at Cornell University, we were able to see a significant difference in the self-reported sense of belonging between those who reported they witnessed or experienced marginalizing behaviors as compared to those who had not.Footnote 22 The sense of belonging for those who either experienced or witnessed marginalizing behaviors was substantially lower.Footnote 23 This result demonstrates that witnessing bias or discrimination, not only experiencing it directly, has a significant negative impact on inclusion and organizational climate. Moreover, the occurrence of subtle and overt bias and discrimination often is not a one-time occurrence. Rather, such conduct tends to be a tacit part of the culture and a manifestation of unconscious bias.Footnote 24 Because aspects of diversity can be invisible some or all of the time and because many acts of bias or discrimination are unconscious, DEI practitioners should pivot toward helping organizations build conscious inclusion practices. Importantly, however, this conscious inclusion must be directed broadly and not limited to situations where we “think” we need it. In other words, it is my opinion that inclusive behaviors need to be learned and practiced across all contexts and with colleagues from all identities—not only when we are aware that an individual with a visible marginalized identity is present. What if the new norm was that diversity, whether visible or nonvisible, is always present?
The Blanck et al. research, along with other study findings, can help us think more holistically about discrimination and bias across identities. This complex area necessarily gives rise to specific concerns and issues associated with specific identities; however, we can shift the “normal” approach to accelerate progress, to the extent that identifying and addressing the common elements of inclusion across identities is possible.
Third, for a more comprehensive and overarching approach, Blanck et al.’s Diversity and Inclusion plus Accommodation (“D&I+”) model could be a viable option worth further exploration.Footnote 25 To my mind, the D&I+ model that Blanck et al. proposes is similar to and seems to be supported by the Bennett scale, also known as the Development Model of Intercultural Sensitivity (“DMIS”). The DMIS describes six stages along a continuum of how one thinks about and experiences other cultures.Footnote 26 The stages range from denial to integration.Footnote 27 Between acceptance and integration is the adaptation stage.Footnote 28 A hallmark of adaptation is being able to generate appropriate alternative behaviors in a different cultural context.Footnote 29 Additionally, adaptation is about creating and enacting behavioral change to communicate and interact more effectively in different cultures.Footnote 30 Fundamental skills to develop in this stage include empathy, problem solving, and risk taking.Footnote 31
If we align societal culture under DMIS with organizational culture under D&I+, the adaptation phase parallels the accommodation component in D&I+.Footnote 32 Keeping with this analogy, instead of moving between societal cultures, we can think about moving from the existing organizational culture to a new and more inclusive organizational culture. To get to the new and more inclusive culture, practitioners need to do the work of diversity and inclusion, but also help facilitate accommodation. Accommodation is the practical action aspect and the change element of shifting culture and upending normal. Under D&I+, I wonder how we can leverage the strengths and skill set of legal training to address bias as a possible behavior change strategy (an accommodation) for mitigating bias in the legal profession. For instance, can we develop a way to use issue-spotting, a core skill of the profession, to help attorneys identify and interrupt bias? The same holds true for perspective taking and counter-argumentation—can we apply those professional skills to help develop the empathy needed to minimize subtle and overt bias and to be more inclusive colleagues? Many professional legal skills can directly translate and be explicitly applied to DEI work if we make the connections and build customized intervention tools.
IV. WHAT IS THE IMPACT OF THIS RESEARCH AND WHAT DO THE FINDINGS MEAN FOR ATTORNEYS WITH DISABILITIES, ATTORNEYS WHO ARE LGBTQ+, AND ATTORNEYS WHO HAVE INTERSECTING MARGINALIZING IDENTITIES?
The Blanck et al. research translates what typically have been anecdotal experiences into concrete data, thereby documenting and affirming the lived experiences of many underrepresented attorneys.Footnote 33 When individuals encounter subtle forms of bias, they often question whether it is happening. Simultaneously, they may begin questioning whether the legal profession is the right one for them. Having objective confirmation that the disproportionately high levels of bias and discrimination are real, though not comforting, can be validating. Moreover, it is incredibly important that this unfortunate and frankly unacceptable occurrence is being studied. There are researchers, practitioners, and legal professionals who are interested, dedicated, and willing to work to understand and improve the experience of underrepresented minorities in the legal profession.
The Blanck et al. study does not provide ready answers, but it does add valuable information into the lexicon and into the creative minds of DEI practitioners who can leverage the data into innovative and hopefully effective solutions.
V. CONCLUSION
One thing that is abundantly clear to me is that in addition to the systemic changes that need to occur in the profession, we cannot lose sight of the real, true, lived experiences of attorneys. We cannot make progress and advance the profession with respect to diversity until and unless we substantially improve the experience and outcomes for attorneys with marginalized identities. The frequency of subtle and overt bias and discrimination experienced by attorneys with marginalized identities must change. To create this change, we must look at and address our own personal behaviors and interactions and the conduct of our fellow colleagues. What we say and do, how we behave, and how we treat our colleagues, whether directly or indirectly, matters.
Similarly, this level of change ought to extend to, and include the way in which, DEI practitioners approach transforming cultures in legal organizations. Specifically, I think an interdisciplinary approach that draws from the experiences of individuals from various identities and in various legal settings is required. We do not need a silver bullet for solving this problem; but we do need thoughtful and strategic tools and approaches that change behavior and culture. To the extent we can find, develop, or create solutions that we can leverage across boundaries, all the better. If not a grand unified theory, we at least need to apply the learnings from disparate fields and disciplines to find solutions that move us forward toward increased equity and a stronger sense of real inclusion.
What changes does the legal profession think that it cannot make? Can we really not make them? Or, are the needed changes simply counter to how things have been done or to what has been considered “normal?” We need to be open-minded about solutions and be willing to do what is necessary rather than what we think is possible. I encourage legal organizations to lean fully into upending and disrupting other aspects of what, to this point, we have considered “normal” because “normal” is no longer working. The current “normal” is not allowing the legal industry to fully benefit from the talents, innovations, advancements, and even bottom-line profits that accrue from employing the best, most diverse attorneys. Through continued research, collaboration, and a more unified approach, let us build a new, inclusive normal that really works.
