Toeing the Same Old Line
I thought this might happen — I’ve been taken to task for opposing diversity initiatives and for not understanding why diversity is so important to the legal profession. I’ve been reprimanded for not supporting diversity, and for failing to realize what’s at stake.
Let’s be clear about this — I’ve not opposed diversity initiatives. What I’ve done is raise some pertinent questions:
- Is a heterogeneous group smarter than a homogeneous group, as so many law firms claim?
- Why are so many firms all saying the same thing about diversity?
- Are law firms ignoring the law for profit?
Raising questions about law firm diversity is not the same as opposing it.
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I see too many instances of homogeneous groups doing very well to accept the notion that they’re inherently inferior to heterogeneous groups, as so many law firms claim. I don’t believe that Japan is destined to economic failure because 99% of the people of Japan are Japanese. And I suppose that if you told a group of Japanese attorneys they were neither as creative nor as good at solving problems as an ethnically diverse group of attorneys (as so many claim), they might either laugh at you, or take offense. Or they might ask for evidence.
While law firm after law firm after law firm makes the claim that a diverse group is both more creative and better at solving problems than a uniform group, there’s no evidence to support the claim, not so far as I’ve been able to find. I’ve asked those who make the claim for the evidence, but they tell me an anecdote or point to some magazine articles that promote the claim. And that’s all! As far as I can see, the notion that the racial or ethnic composition of a group is dispositive of the group’s intelligence is a myth: a modern myth.
To hold this myth is to hold this — neither a group of Asian Americans, nor a group of African Americans, nor a group of Hispanics can be just as smart as the United Nations. Why? Because — according to most law firms — they lack diversity.
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The law of the land includes the Equal Employment Opportunity Act, and every large law firm has a notice posted somewhere reminding everyone that Equal Employment Opportunity is the Law. That notice states that discrimination in employment based on race is illegal.
A large law firm is likely to display — and much more prominently than any notice about the law — a notice about diversity. Rather than being posted in the cafeteria for employees to see, it’s posted on the firm’s Web site for all to see: law students, organizations that bestow diversity awards, and Fortune 500 companies that have diversity on the list of things law firms must do.
Some firms go too far. Their diversity statements suggest that they do consider race in their hiring practices. Consider this statement at one large firm’s Web site: enhancing diversity is a primary consideration in our hiring practices. Consider this statement, made by the chair of a firm’s diversity committee: department chairs [must] consider diversity goals when hiring lateral candidates. Given how law firms measure diversity, this amounts to racial profiling in employment.
That talk is music to some ears, and a siren to others. The EEOA is still the law of the land, and discriminating for or against people according to race is still illegal. The EEOC can embrace diversity. A Fortune 500 company can say it’s going to demand a racial profile of any firm that represents it. The ABA can set Standard 211 so that some law schools must ignore the law to maintain their accreditation. The Supreme Court can say that diversity in higher education is a compelling state interest. But that doesn’t mean that racial discrimination in hiring is legal. Title VII of the Civil Rights Act is still the law, and we should expect law firms (and law schools) to honor it.
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Many large law firms use much the same language (as most other large law firms) to express the benefits of diversity, or the rationale behind it. They use the same key words (inclusion, dignity, respect) and arrange them into similar phrases. Consider these phrases, found at the Web sites of various law firms:
- diversity is one of our core values; diversity has long been one of our core values; diversity is a core value at our firm; diversity is a fundamental core value of our firm;
- we are committed to fostering a diverse and inclusive work environment; we are committed to building a diverse workforce; we believe that fostering a diverse and inclusive workplace is the right thing to do;
- our diversity makes us highly creative problem solvers; with greater diversity, we can be more creative; a diverse workplace creates an environment that encourages creativity and innovation; diversity encourages innovative thinking and unique solutions; diversity provides a richer work environment and fosters creative thinking and problem solving;
- a diverse workforce enhances our workplace and improves the quality of the services we deliver to our clients; diversity promotes better client service; being a diverse firm significantly enhances our ability to provide high quality legal services to our clients; diversity and inclusiveness allow us to provide our clients the highest quality legal services;
- we are committed to increasing and maintaining diversity at all levels; our goal is to increase the percentage of minority associates at our firm; enhancing diversity is a primary consideration in our hiring practices;
When firm after firm says the same thing over and over, it all sounds hollow. Too much redundancy and repetition betrays a lack of sincerity.
Imagine a law student cruising law firm Web sites just to see what different firms say about diversity. After a short while, the student gets bored reading the same thing over again. If the student should come across a law firm that seems sincere (i.e., original), then the student is much more likely to be impressed. So there’s a very functional aspect to saying something new, or saying something old in a new way. Done properly, it makes a favorable impression that can help attract new associates.
There’s another advantage to distinguishing your firm from all others when it comes to diversity. It can help attract certain clients, especially large clients, like the Fortune 500 companies that place great emphasis on diversity. Imagine someone working in the law office of a top company spending time reviewing the diversity statements of law firm after law firm. If that someone finds firm after firm saying the same old thing the same old way, he or she is going to notice it — and then really notice it when along comes a firm that has something different to say. There’s a real functional aspect to having original, well-written copy about diversity.
Insincere hype is ineffective; discerning readers see right through it. A law firm that’s been in existence for more than 100 years can claim that diversity is one of its core values (and always has been), but minority law students — the very people the firm hopes to attract with the claim — aren’t fooled. “If it’s a core value, then why can’t the firm point to anything it did or said to promote diversity more than five or ten years ago? If the firm is as serious about promoting diversity in the legal profession as it claims, then why does it spend so much less on its one minority scholarship than it does on one associate’s annual bonus?”
Consider that many large firms feel compelled to mention the types (race, ethnicity, sex) of certain attorneys, but not the types of others. A firm talks about Partner A and Partner B without ever mentioning that one is Jewish and one is Irish, yet — when that same firm talks about Partner C — it can’t do so without noting that Partner C is African American. Good intentions notwithstanding, when a firm claims that it treats everyone the same as everyone else, but it talks about some types of people differently than other types, something’s wrong. Something’s wrong when a firm says it doesn’t consider race at all, and then adds, “12% of our associates are African American, 18% are Asian American,” and so on.
My point is this — there are much better ways to make the case in favor of diversity than by toeing the same old line as everyone else.
June 12th, 2006 at 12:19
This is an issue that is important not just to law firms, but to all corporations doing business in America and many other countries. It is an issue that’s important to how firms market themselves, and to how they behave both internally towards their employees and potential employees, and externally towards clients/customers, vendors, shareholders and the public at large.
While I agree that there are instances (perhaps many) where law firm rhetoric on diversity is just that — rhetoric — and where claims about such are not substantial or substantiated… and while I agree that simply saying “Diversity is good” does not make it so… I think you are missing a couple of points in the big picture.
First of all, most organizations, when they speak about a comittment to diversity, do not simply mean “racial or ethnic” diversity, although that is one of the easier measures to track. In the past, gender diversity was also a major measure as women entered the various professions, and now we also have “lifestyle” diversity; ie, gay/lesbian/bi-sexual/transgender (GLBT) rights issues to consider. Age diversity has begun to play a part, and if you think that’s a fringe issue now, wait until the “hump” in the Baby Boom really starts to grey, and you’ll see age discrimination suits hit in spades.
But beyond specific, “protected” classes, truly coherent “diversity initiatives” embrace the idea that very different, yet actively aligned (from a corporate standpoint) types of individuals CAN create a greater syntheses for various types of business activities than can a more homogenious group of employees. That is especially true when it comes to the more esoteric, creative and strategic roles in companies, including marketing.
While it is certainly true that, in a business vacuum, no algebraic, “heterogenous” group will be generically “smarter” than a “homogenous” one… that just doesn’t happen. And while few people will make blatantly racist comments about particular cultures that are more homogenous or insular in terms of their racial demographics… historically speaking, those cultures that adopt a more inclusive and outwardly accepting attitude towards ideas, concepts, creativity, language, trade, economics, business, education and, yes, ethnicity, have tended to do much better than those who have locked themselves away. It is a simple rule of Darwinian selection that the more different genes you have in the pool, the more likely that you’ll get combinations that work well.
In terms of American businesses in particular, we are now much more ably positioned, from a creativity standpoint, to serve a “flat world” where an understanding of mixed, multilingul, global concerns is… er… concerned. Why? Because we’ve been “melting” in the pot for a couple centuries. We have companies that have been doing it well for decades. And it comes from an embracing of a concept that is very American, though not exclusively so (Thank God); pluralism. The idea that multiple things can be good at the same time. It is the “noun” to “diversity’s” adjective.
A “diverse” workforce will be able to understand a diverse world. It is as simple as that. If your customers are of many different types, you need to be able to think like them, anticipate them, understand them. If your vendors, shareholders and public are not all the same, it is less likely that you will understand them if you all look like somebody they’re not. I’m not saying that homogenaity is *bad* — it’s not evil, it’s not repressive, it’s not racist (necessarily). I’m saying it’s a competitive disadvantage. There are waaaay too many people out there with waaaay too many dollars to spend and invest who do not look, sound, speak, dress and act like you for you to only hire people who are just like you.
Think of it this way — does a baseball team with only pitchers make any sense at all? There’s not a thing wrong with a great pitcher. Or three. Or ten. And in the Baseball Hall of Fame, there may even be more pitchers represented, per capita, than any other position. But do you want a whole team of them? Of course not. Because they can’t do everything you need. You need… a diverse team.
People of different backgrounds — whether those backgrounds be geographic, ethnic, class, gender, sexual, educational, thought-processing-type, emotional-type, whatever — do think differently. And putting them together will help you get better results.
All things being equal, when you hire someone, you should be thinking, “What does this person bring to my team that nobody else currently does? That is rare? That is interesting and creative? That will be hard for my competition to replicate?” That should be one part of your hiring process. An important part.
June 12th, 2006 at 13:48
As always, you have some very interesting and thoughtful ideas that you’re willing to share.
I especially liked the way you ended your comment. It gave me some encouragement, especially since you’d already mentioned that pernicious little monster called age discrimination. I’ve been trying to land a job with a law firm for some time now and my experience tells me this: law firms engage in age discrimination just as much as high tech firms do. Once you hit 40, . . . .
You reiterate the notion that diversity enhances group smarts. I’ll ask yet again: where’s the evidence for this? We might like it to be so, but — as you note — that, on its own, doesn’t make it so.
Darwinian selection? You’re not serious about this, are you? I can’t believe that mulattos are smarter or more advanced than Europeans or Africans because of the genetics involved.
I like your baseball analogy, but that just makes me think of basketball (as well as the limits of analogies). Who would want a professional basketball team that is ethnically diverse? By far, most NBA players are black. I suppose there’s a reason for that that goes well beyond racism.
Finally, your notion that people of different backgrounds think differently. That’s a double-edged sword, that one. (It’s long been used as a basis for myths about racial superiority.) The notion implies that people with similar backgrounds all think alike. Fact is, people from very similar backgrounds do think very differently from one another. (As I see it, everyone is a unique individual.) But what does that even matter? Should we expect a group of people who don’t think alike to be more effective, efficient, creative, or smarter than a group of people who do think alike? Are us Yankees superior to those Japanese, because we’re diverse and they’re not?
June 15th, 2006 at 04:17
The Japanese are not known for their creativity.
June 15th, 2006 at 08:13
No, they’re not. But consider the term ‘Yankee Ingenuity.’ That’s a reference to the propensity of the early colonists (a bunch of white folks) to make do with what little they had.
June 20th, 2006 at 10:59
So much energy to support homogeneity - madness. Waste of time. Who needs data? Bay of Pigs, Shuttle disaster, juries all across this country - need I say more. It is called Groupthink. The diversity of thought, diversity of background will only better the practice of law. I work with many law firms - from small to huge - and they want diversity of opinion, diversity of perspective, diversity of approach to complex legal issues and challenges. What juries and GCs are telling us - speak to us, be like us, be authentic, believable and make us feel you are honest, trustworthy and can empathize with the jury and the parties involved. Homogeneous representation cannot anticipate all of the related issues heterogeneous or diverse representation is equipped to deal with. You to move on. If you are not diverse - get busy finding the best and most diverse talent you can. The next frontier is making the most of your diverse talent.
Too much time wasted on the past. Time to look to the present and the future. My clients are tired of “status quo” - doing the same things they have always done and expecting better results! Ludicrous. Insanity. If you hear “We have always done it that way” - run, as fast as you can to a better more forward-thinking law firm. The past will get you nowhere fast. Diversity is about change and an acknowledgement that the past is not a strategy for the present and future.
I appreciate your time and consideration. Mauricio Velasquez - mauriciov@diversitydtg.com
June 20th, 2006 at 11:22
RE diversity of opinion, diversity of perspective, diversity of approach
When I hear this, I wonder:
First, why don’t law firms hire some mathematicians or scientists or engineers if they want new approaches and perspectives? Why do they keep hiring people trained at the same old place and in the same old way? Why not hire some folks who really understand logic and reason, cause and effect?
Second, why is it that so many people who work at law firms that tout diversity of opinion say that diversity of opinion is hardly tolerated at their firm? Why would a law firm so hip to ‘diverse ideas’ refuse to hire someone who believes that homosexuality is a sin, and then says what he believes? If diversity of opinion is such a good thing, why not encourage it? Why demand that everyone agree that diversity is good?
And then I wonder this — all these diverse minorities who have such new and fresh ideas — are they set on changing the way law is practiced, or are they set on learning how it is practiced? Confronted with a (racially and ethnically) diverse group of students, what’s a professor of law to do? Ask the students to teach the faculty so the faculty can get hip to their diverse ideas?
I note your reference to Group Think. Seems that’s what law firms subscribe to when it comes to diversity. How else to explain that most all have the same thing to say about diversity, including the unsupported claim that a heterogenous group is both smarter and more creative than a homogeneous group?
February 8th, 2007 at 10:12
[…] A recent post at another blog prompts me — once again — to speak directly to those who figure I must be a conservative bigot, given what I’ve written about the diversity efforts of law firms (and law schools). […]