Are There Winners and Losers in “Big Tent” Diversity?

1. Are There Winners and Losers in “Big Tent” Diversity? Center for Legal Inclusion Diversity Summit July 29, 2019 Courtney Carter, Associate Director of Diversity & Inclusion at Jenner & Block LLP Robert White, Executive Director, California Minority Counsel Program

2. Learning Objectives – Why are We Here? • Explore the evolving and expanding definition of diversity • Discuss implications of the expanding definition of diversity for: • Groups traditionally treated as diverse • Diversity leaders • Organizations • Frank conversation about how the definition of diversity can shape diversity initiatives

3. Diversity was…

4. Diversity is…?

5. What does diversity mean to you? • What does diversity mean to your organization? • Has that definition changed over time? • Should it?

6. The Expansion of “Diversity” • Less than 45% of largest U.S. businesses now use “traditional” measures of diversity • Law firms are reluctant to define diversity narrowly for scholarships and recognition • The move to a more inclusive definition of diversity can seem like the right move – is it?

7. Implications of the Expansion of “Diversity”

8. Hypothetical #1 Key Questions • In deciding which groups are diverse, should we look at: • Historical disadvantages • Current numbers • Levels of difficulties or advantage relative to other groups in fitting in and advancing

9. Hypothetically speaking . . . • A firm is preparing a pitch is including their diversity statistics. • Guided by the business development team, Asina prepares a chart that shows 20% of the firm’s attorneys are diverse, based on ethnically/racially diverse attorneys and LGBTQ attorneys at the firm. • Bonnie sees Asina’s figure and says “That figure is wrong – you should include all the women in the firm, which makes the number 35%.” • Clyde comes over and said “You’re both wrong. It should be 40%, because it should also include all first-generation attorneys.” • Who is correct? On what basis should the final decision be made?

10. Hypothetical #2 Key Questions • What metrics matter when deciding who should participate in events that are labeled as diversity events? • Who should determine these metrics? • Is it the job of the hosts of these events to include everyone who wishes to be included even if they might not be seen as traditionally diverse?

11. Hypothetically speaking . . . • Jack, a white male first-generation law student, grew up in a rural low-income community and would like to participate in a diversity 1L career fair. • Should Jack be able to participate in the diversity career fair? • In small groups, assign roles and do a 1-minute role play of a conversation between Jack and his law school career counselor

12. Hypothetical #3 Key Questions • Who should decide what diverse means? • Does it matter if the people deciding who is diverse are not traditionally diverse themselves? • Do we need to have a single universally accepted definition of diverse / diversity? • What are potential unintended consequences of an unclear call for diversity?

13. Hypothetically speaking . . . • A firm client announces that moving forward 30% of attorneys on their matters must be diverse (not defined). • The relationship partner at the firm sends an email to the whole firm letting them know about this change, and encouraging attorneys to take on work for the client. • What do you think the reaction of the firm’s attorneys is? What would your reaction be?

14. Hypothetically speaking . . . • That same partner then sends another email stating that attorneys are not self-identifying as diverse by expressing interest in the work. • Then HR sends a third email stating that the firm is an equal opportunity employer and all attorneys will have equal opportunity to work for all clients. • What do you think the reaction of the firm’s attorneys might be? What is your reaction?

15. Hypothetical #4 Key Questions • When examining diversity within ethnic and racial groups, should those groups always expand to include “allies”? • Does it matter if those allies are White or another historically underrepresented race? • Are there legal concerns in excluding or including individuals from affinity groups (or employee resource groups)?

16. Hypothetically speaking . . . • Marisela is the only Latina in the office. Because there is no Latina group for her to join, she asks to join the Black attorneys group. • While employee affinity groups are open to all, historically only Black attorneys participate in that group, and for them the group is their safe space to talk candidly about their experiences at the firm. • If this was your organization, how would you advise Marisela? Why?

17. Wrap Up • Will your definition of diversity and who is diverse change moving forward? • Why or why not? • How do you see the definition of diversity impacting your organization? • Questions?

18. Resources • Women of Color Left Behind As Women are Added To Boards, Management, Georgene Huang, Forbes, November 27, 2018 • Who Really Benefits from Big Tent Diversity? Vivia Chen, The American Lawyer, November 26, 2018 • Research: When Boards Broaden Their Definition of Diversity, Women and People of Color Lose Out, Marta Geletkanycz, Cynthia E. Clark and Patricia Gabaldon, Harvard Business Review, October 3, 2018 • Colorblind Diversity Efforts Don’t Work, Joelle Emerson, Harvard Business Review, September 11, 2017