Open letter to a DEI skeptic

Open letter to a DEI skeptic

My law firm is one of many to form a committee on diversity, equity, and inclusion, or DEI, over the past few years. You’re right: this seems to be a national trend. More and more firms view DEI work as a chance to put the legal profession’s core values into practice.
But I understand you’re skeptical about DEI work and that many in the legal profession greet DEI initiatives with eye rolls and disdain.
Those opposed to DEI initiatives offer three main arguments. First, there’s the argument that DEI work is empty virtue-signaling — a false posture for “likes” on LinkedIn posts. Second, some argue that DEI emphasizes our differences when we should focus instead on our common humanity. Third, some believe that DEI work can only open doors for some if it closes doors for others. And if this door-opening decision hinges on, say, race or gender, then DEI is inherently prejudicial in their view.
I think it’s important for those of us who value DEI work to understand these criticisms as offered in good faith and to respond in kind. Here’s my attempt.

DEI is about more than collecting ‘likes’ on LinkedIn

Let’s start with the first criticism — your argument that DEI is just theater. Talk of DEI certainly can be empty sloganeering sometimes. We all fall short of the principles we espouse; it doesn’t follow that those principles lack merit. To understand why DEI initiatives are not theater, it helps to consider some of the core beliefs underlying this work.

First, there’s the recognition that we spend our lives making choices that open some doors and close others. When we pick a law school, for example, that opens certain doors (like the influence of certain professors or the assistance of certain alumni) and closes others (like the professors and alumni at other schools).

Which doors we choose depends in part on which doors we think are available to us. We ask ourselves if there’s room for someone like us on the other side. DEI committees exist because we want the answer to be an emphatic yes — without regard to race, gender, religion or any similar trait — for every door in the legal profession. That’s what DEI committees mean when they talk about “representation.”

DEI work also arises from the recognition that, as our careers progress, we find ourselves holding the keys to certain doors — to jobs, to promotions, to opportunities, to raises, and so on. We want to be good stewards of those doors. And being a good steward means ensuring that those doors are open to anyone qualified to use them. This equal-protection principle is a constitutional value — one of the rules we pledge to support when we earn a bar card — and we can uphold that value only if we act with intention.

DEI work also demands a little humility. It recognizes that we are flawed human beings who are not always aware of our own biases. We may close doors to others based on assumptions we hardly know we’ve made. Just as you cannot choose an antidote until you identify the poison, you cannot address bias until you identify it. That work starts with our own biases.

What does DEI look like on the ground? Judging from firms around the country, DEI means actions like:

  • keeping track of who gets invited to client meetings to make sure everyone is getting opportunities to grow their business;
  • doing more to recruit from underrepresented groups, such as sending job openings to affinity bar groups;
  • reviewing salaries to look for pay gaps; Encouraging attorneys to share their pronouns so everyone feels free to be themselves; and
  • investing in underprivileged communities to ensure that today’s young people have the opportunity to become tomorrow’s leaders.

The list could go on and on. The point is that DEI work involves deliberate actions, grounded in constitutional values, that can make a difference in people’s lives.

Ignoring race and other characteristics is not neutral

You’ve argued that the only ethical and legal response to discrimination is to take no account of race or any similar characteristic. That idea finds an ally in Chief Justice Roberts, who wrote in 2007 that “[t]he way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”
In a sense, you’re right. If we were creating a new society from scratch, without a history, this idea might have merit. We all want a society where people have the same opportunities no matter their race or gender or religion or so on. If we could work from a blank slate, of course, we’d prefer to take such considerations off the table.
But we’re not working from a blank slate.
Our culture has a long history of discrimination against certain groups. Indeed, our Constitution itself originally included a racist compromise designed to preserve slavery — an institution of unfathomable racism, violence, and cruelty. Things may be better today. But racism, sexism, and other forms of discrimination remain painful realities for many Americans. We have miles to go before we can declare victory over discrimination — particularly when much of that discrimination comes from complex institutions and unconscious biases.
The truth is that refusing to acknowledge race and other protected characteristics is not a neutral position. At its worst, it’s a position that perpetuates harm while polishing its own halo. We form DEI committees because we recognize this country’s history and we recognize the discriminatory forces still at work today. We cannot accept facile answers to complicated problems — at least not if we intend to solve those problems.

DEI need not come at somebody’s expense

Finally, I’ve heard you argue that DEI is inherently discriminatory — that we can only ensure one group’s success while robbing another group of its success. What’s often at the heart of this somebody-has-to-lose criticism is the fear that one group — white, heterosexual men, usually — are going to be on the losing end of every decision now.
It’s tempting for DEI-minded folks to respond that white, heterosexual men have had unfair advantages for hundreds of years and would be wise to keep their bellyaching to themselves. But you’re right. That response isn’t helpful or even persuasive. We don’t punish children for their parents’ sins; we shouldn’t justify discrimination against a group today based on that group’s discrimination in the past.
Instead, we can rely on a healthy dose of truth. And the truth is that not everything is a zero-sum game. We can work toward diversity, equity and inclusion without creating new forms of inequality. We can make sure every voice is heard without silencing any voices.
For example, if a firm is looking for a new associate, it could just place its ad with the usual outlets and forego any DEI considerations. Alternatively, it could make sure its ad gets the widest possible audience by deliberately reaching out to affinity bar groups. Increasing the audience doesn’t harm anyone. To the contrary, the increased competition only increases the firm’s odds of making a great hire. No one loses.
Or consider what happens when a firm looks critically at its standard operating procedure. It might discover that having every firm event revolve around that old law-firm standby — alcohol — sends an exclusionary message to those who avoid alcohol for religious or other reasons. That doesn’t mean that a firm must eliminate all events featuring alcohol. Instead, it means planning some events that don’t revolve around alcohol. No one loses.
Or think about how DEI initiatives might work when it comes to hiring decisions. Becoming more mindful of your unconscious biases — of all the little presumptions shaping personnel decisions — only helps you combat those biases. And combatting those biases helps you make a better decision — one based on the things that really matter.
Maybe you find yourself more drawn to candidates with familiar-sounding names rather than those with unfamiliar names. That’s a silly reason for a personnel decision, so out it goes. Or maybe you find yourself presuming that a former college football player is less intelligent than a former college chess player. Again, a bad assumption. Out it goes. Or maybe you realize that you view a soft-spoken candidate as less capable of handling courtroom rough-and-tumble than a more boisterous candidate. That assumption is hardly grounded in fact, so out it goes.
Uncovering these biases harms no one. Instead, that process eliminates noise and equips firms to make better hiring decisions.

Why should you participate in DEI work?

Ultimately, there are many reasons for firms to spend time and money on diversity, equity and inclusion. For some, it’s the oath we take to support the Constitution and its guarantee of equal protection. For others, it’s the principle that we should treat others the way we want to be treated. And maybe it’s the fact that DEI work equips the legal profession to serve the public and our clients much better. Just as genetic diversity increases a population’s health, diversity of every kind makes our law firms stronger.
If this letter doesn’t convince you of the value of DEI work, you might try something else: participating in your firm’s DEI committee. There’s no better way to see that DEI is more than a catchphrase, that ignoring issues like race and gender only perpetuates harm, and that firms can advance diversity, equity, and inclusion without engaging in discrimination.
Is every DEI initiative perfect? Of course not. No human endeavor is. But DEI work is slowly, steadily improving our profession. And that effort could use your input, too.

Have questions or looking for further information? Contact one of our attorneys.