US Law Week

Taking Diversity and Inclusion From Theory to Structure

Dec. 28, 2020, 9:01 AM

The tumultuous events of 2020—most notably, the Covid-19 pandemic and the global outcry for racial justice—have created new challenges and opportunities for the field of diversity and inclusion. Organizations are grappling with the concept of “privilege,” often for the first time. They are also rethinking the rationale for engaging in this work, and struggling to transform good ideas into practical outcomes.

New York University School of Law professor Kenji Yoshino and DLA Piper’s Fenimore Fisher sat down to discuss the evolving landscape of diversity and inclusion at this time of medical and moral crisis.

How does the concept of “privilege” inform the work that you do?

Kenji: Everyone has forms of privilege and forms of disadvantage—whether based on race, gender, class, or other identities. To achieve inclusive workplaces, it’s essential to consider the role of privilege in shaping, for example, who feels pressure to assimilate to the dominant culture.

Although privilege is an important concept, I have shied away from invoking it in the past due to the “hard-knock life” effect: A study found that when white people were asked to describe their childhoods, the group first exposed to a reminder of white privilege described tougher childhoods than the control group. In other words, discussions of privilege make people retreat into their own disadvantages rather than staying with the disadvantage they are being asked to address.

More recently, however, I have become convinced that the only way forward is to address privilege directly. The key is to talk about it in a way that doesn’t make people shut down and opens space for self-reflection.

Fenimore: I agree that it’s important to talk about privilege. As Kenji noted, privilege can shape the culture of an organization. In my work, I have seen how privilege can interact with affinity bias (our tendency to gravitate to those with similar backgrounds) to stand in the way of progress.

For example, many organizations use the phrase “cultural fit” to evaluate candidates or make promotion decisions. However, when used inappropriately, cultural fit can entrench privilege and serve as a barrier to entry—the upper echelons of an organization just replicate themselves without opening it to new forms of talent.

In seeking the best and most qualified talent, organizations should seek those who add to or enhance workplace culture, not drive people to assimilate.

We often hear the distinction between the business imperative and the moral imperative for diversity and inclusion. Have recent events, particularly the global call for racial equity and social justice, changed how you balance these two imperatives?

Kenji: Advocating for diversity and inclusion is the right thing to do, period. But the market horse and the moral horse are running in the same direction: Inclusive organizations are more just and they’re also more innovative and able to retain the best talent. It would be foolish not to leverage the business case by emphasizing how diversity enhances an organization’s success.

Since the racial justice protests of this year, I’ve also noticed that the two imperatives are merging. Consumers have long exerted market pressure around issues like environmental sustainability. Now they’re increasingly considering an organization’s commitment to diversity and inclusion when deciding which products and services to buy. In some cases, the market horse and the moral horse may not just be running in the same direction—it may just be one horse.

Fenimore: Despite years of research on how diversity contributes to growth, innovation, and sustainable organizations, there is still a continued dialogue on the business case as well as extensive peer benchmarking. While not discounting those efforts, I hope that the value proposition for diversity and inclusion is evolving, especially now, as we try to address concerns about the advancement of marginalized groups.

As organizations embrace the social imperative, I also think it’s important that we talk about how this work is not a zero-sum game and can actually benefit those who aren’t diverse.

Many organizations struggle with how to take diversity and inclusion work from a theoretical approach to a strategic and structural one with actionable goals. How do you overcome that challenge?

Kenji: Everyone now accepts that implicit bias exists, but they struggle with how to respond. Implicit bias is sticky—we can reduce bias temporarily, but if we’re stressed or tired, it will re-emerge.

We recommend two categories of responses: structures and habits. Structures are organizational systems that make it harder for bias to find expression. For example, when recruiting, organizations can adopt formal benchmarks, such as the Mansfield Rule, to force consideration of a certain percentage of diverse candidates.

Habits are individual behaviors. One example is allyship—how to support others if you are not directly affected by an inclusion issue. We teach the habit of asking permission from the affected person before intervening, so that you avoid acting in ways they find unhelpful.

Fenimore: Structural change is much more difficult than external good works, but it’s critical to advancing diversity and inclusion as a movement, not just a moment.

In my experience, organizations need to engage in self-evaluation and continuous improvement of their internal human resources practices and diversity and inclusion strategies. It’s also vital to lean into discomfort.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Kenji Yoshino is the Chief Justice Earl Warren Professor of Constitutional Law at New York University School of Law and director of the Center for Diversity, Inclusion, and Belonging.

Fenimore Fisher is chief diversity and inclusion officer at DLA Piper. He previously served as vice provost and chief diversity officer at Johns Hopkins University.

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