By Rebecca J. Bernhard, Partner and Diversity and Inclusion Co-Chair, Dorsey & Whitney LLP
For many of us, the #BlackLivesMatter and #MeToo movements seem to have sprung up suddenly and out of nowhere. Social media’s ability to mobilize vast numbers of people almost instantly and a news media driven to provide new content on a minute-by-minute basis combined to create at least the appearance of large-scale societal upheaval, with the result that many individuals—whether or not they welcome the changes caused and demanded by the movements—are uncertain of the social ground beneath their feet. And this uncertainty, in turn, raises important and difficult questions for the institutions—including law firms—that employ these individuals: What about these movements should corporations be aware of and how should leadership respond, if at all?
It is tempting to do nothing. Indeed, this seems to be the default position of corporate employers—a CNBC poll from December of last year showed that, at least with regards to #MeToo, a majority of corporate leaders polled professed unconcern. Their reason was simple: they believed that the policies already on their books were adequate to prevent sexual harassment in their workplaces. And although I was unable to find any similar data regarding corporate responses to #BlackLivesMatter, it is not hard to imagine that a similar confidence applies. After all, the death of a Black employee at the hands of law enforcement is simply not something that happens in most workplaces, and so it is easy to assume that there is no need to formally talk about such violence. From one standpoint, this could very well be the right decision: an employer’s obligation is to ensure compliance with the law, and anything else represents a venture into very sticky territory indeed. Developing and implementing policies to maintain compliance with anti-discrimination and anti-harassment laws is an objective goal that can be cleanly measured, whereas building an inclusive workplace that values diversity is a subjective aspiration that seems to shift with every social movement.
There is no single pathway to improving a workplace’s culture. The goal is to ensure that every employee feels welcomed, valued, and able to contribute to their employer’s success. Law firms in particular have been frustrated with the myriad programs put in place to improve recruitment and retention of diverse lawyers, because, well-intentioned and thoughtful as such programs have been, the results have been decidedly mixed. We participate in affinity bar recruitment fairs; we set up internal affinity groups; we award matters and decrease fees based on the statistical results of diversity efforts, but the law nevertheless remains the least diverse profession, and law firms in particular have failed to keep pace with their clients’ legal departments in retaining lawyers of color and women.
I would submit that it can be valuable to see the #MeToo and #BlackLivesMatter movements (and others like them) as an opportunity to strengthen existing efforts to create and maintain a diverse and inclusive workplace. The people speaking out about their frustrations, tensions, and concerns are employees in our workplaces. If they are expressing their opinions about society, then leaders within corporate and legal institutions should not ignore them – these institutions are part of society and what is happening outside the walls of these institutions surely has relevance within.
At their core, the purpose of the #BlackLivesMatter and #MeToo movements is to give voices to people who have felt silenced—and if someone feels silenced, they cannot thrive. Separate from the legal concerns of whether an employee is being discriminated against or harassed, diversity initiatives must focus on whether diverse employees feel included and valued. Although there is no magic formula for successful diversity initiatives, those companies who have enjoyed more success are able to describe their workplaces as having highly engaged employees, effective communication techniques, and cultures that embrace and celebrate differences. That is, a workplace culture must listen and respond to its employees, and include all employees in its mission. This is not a new idea. It is well established that an engaged workplace makes for a more effective company, if the number of management books promising to improve employee engagement is any indication.
Still, what does all this mean within the diversity context? First of all, we must ask if diverse employees feel that their voices are heard. Are they seeking a voice outside of work to express their concerns about work? Or worse, are they just leaving, without even trying to express their concerns? If you are lucky enough to have a smaller workforce you can host meetings to listen to employees. If you are larger, consider engaging a service to survey your employees. Understanding where your employees are will help you begin to understand where you need to be. The members of the #BlackLivesMatter and #MeToo movements are people who have something to say but have felt ignored for far too long. Let’s start listening.
Rebecca Bernhard is a partner in Dorsey & Whitney LLP’s Labor and Employment group and serves as the Firm’s co-chair of Diversity and Inclusion. Rebecca’s experience spans traditional labor and employment counsel, immigration, and federal contract compliance and audits, including affirmative action plans and audits. She is a frequent author and speaker on labor and employment topics confronting HR professionals, including legal issues related to talent management, succession planning, and compliance. Rebecca would like to thank Cornell Moore, Of Counsel with Dorsey & Whitney LLP for his contributions to this article.