Corporations are Ignoring a Ready-Made Resource for Building Successful Diversity Initiatives
It’s one ironies that law school never covered: A minority corporate counsel, dedicated to the issue of organizational diversity, forced to defend the corporation against the very practices she abhors, or advising it on how to avoid lawsuits when firing or "RIFfing" women or people of color.
How, at the beginning of the 21st century, can companies still find themselves on the wrong side of the diversity issue? When, for the past two decades, corporations have invested a great deal of time and money in building a diverse workforce. With diversity results still so disappointing, clearly something is wrong with corporate diversity strategies. There is a disconnect between the goal and the day-to-day experience–the result of diversity committees on one hand taking a proactive approach, and in-house counsel on the other preparing briefs to fight discrimination lawsuits.
The role of in-house counsel, which understands discriminatory employment practices best, should be expanded into in-house advocates for diversity. Diversity should be part of the general counsel's office responsibilities. Attorneys should use their analytical and negotiating skills to build a diverse work environment that thrives and endures. Haven't attorneys always pushed the limits of the law to build an America that is better for all? They are equipped to play that same role within their corporations.
Why Corporations Need to Be Successful on Diversity
Corporate leaders undoubtedly have many reasons for their commitment to diversity, but chief among them is the reality of the current and future labor pool, as well as the global marketplace. The ability to work comfortably and well with people from diverse backgrounds-what some call "cultural competency"–is now and will continue to be a requirement for success. Consider these data and projections from the 2000 U.S. Census:
- Only about one-third of the U.S. population is currently white male.
- In the next generation, white males will be, at most, just one-third of the workforce.
An increasingly diverse workforce is reality, and corporations have no time to lose in learning how to thrive within it. Those who learn first will continue to have the global advantage.
In-house counsel offices have an important contribution to make. Those lawyers need to seize the initiative – now!
What Counsel's Offices Do Now
Too often, corporate general counsel offices have fallen into the role of defending the status quo, usually by waiting until some problem or question lands in their laps: You can't do this because you might get sued; do it this way so we don't get sued; and, finally, we didn't do the discriminatory things we are accused of doing.
While defending a corporation against charges of discrimination is not the same as promoting diversity within that corporation, the issues are related, historically and practically. Diversity can never be successful unless or until discriminatory practices are eliminated. And it is on the issue of discrimination that corporate legal offices are involved.
Unfortunately, since the legal department's role is to focus on the mistakes and the failures, to treat diversity as a problem, a punishment or simply a matter of compliance, the line officers cannot be expected to welcome the changes. If their personal experience is with the problems of achieving a diverse workforce, those problems will dominate the environment. It's a self-fulfilling prophecy.
Today's Default Strategy is Not Cost-Effective
There is plenty of proof that diversity fumbles and a default decision to skate along unless or until someone brings a discrimination lawsuit is a very expensive strategy. We see higher and higher jury awards. Look at the recent survey of jurors conducted by the Minority Corporate Counsel Association: 85 percent of respondents agreed or strongly agreed that companies cover up problems unless or until forced to reveal them, including problems with discrimination. That's a very strong vote of no confidence among the general population, and it doesn't bode well for future litigation.
And the high costs are spilling over into other aspects of business life. Employment practices liability insurance rates and deductibles have sky rocketed in the last decade, and insurance companies now conduct research into individual company employment practices before quoting a rate. In some cases, the rates are prohibitive.
The less dramatic response to perceived discrimination, or feeling alienated or undervalued, is for an employee simply to leave the company. Women and people of color already do this in large numbers. This too is a huge expense–in lost training costs, the cost of training new recruits and the less easily measured cost of lost opportunity and creativity down the road.
Nothing requires companies to sit and wait for the ax to fall. Proactive stands bring positive results, and some companies are already seizing the initiative. For example, Range Rover, a part of Ford, and Deloitte & Touche have set up Diversity Advisory Councils with outside experts as members, even though they are under no legal compulsion to do so.
The Equal Employment Opportunity Commission has adopted a proactive stance, working with companies to stop discriminatory practices before they become lawsuits. In-house counsel can and should do the same.
Defending against or avoiding litigation is not cost- effective, and, given demographic realities, it will just become a more expensive strategy.
What Counsel's Offices Should Do: Seize the Diversity Initiative
Why have corporate attorneys accepted a negative role? Why are they waiting to hear bad news from human resources or even line officers, when they could be defining an environment that ensures diversity? The struggles for a fair and equitable American playing field have always been waged by lawyers, but in-house, it is lawyers who are allowing themselves to be boxed in by narrow law. Why are they not the ones pushing the boundaries to protect the larger interest of their corporations? Using attorneys as naysayers is a waste of ready-made and valuable corporate resources.
In-house attorneys can and should be proactive on diversity. They are in a position to know business and economic trends and corporate strategies and processes, and they can analyze how these trends, strategies, and processes will interact. They are professionals whose opinions and analyses carry weight.
Why is there such a disconnect between what the executives say and what happens day-to-day? Why do so many people of color and women leave, and why are so many asked to leave? Everyone hears the same reasons–"more time for family," "a better offer," "work not up to par"–but the group patterns are so pronounced that the platitudes are not convincing. Attorneys are in a position to identify the problems, find solutions, and, more importantly, convince line managers to commit to change.
General counsel offices should be pressing to have diversity officers report to them, rather than to human resources. Let those who are most familiar with the issues faced by women and people of color in the workplace–albeit from the defensive perspective-become the internal advocates for programs that work. They can institutionalize fairness and create the diverse environment their executives know they need. Why not skip the anxiety of waiting and become proactive?
As attorneys, you are skilled negotiators. You are quick studies in what is needed to bring about a desired result, whether with government regulators, in court, with clients, with adversaries or with colleagues. Apply this same analysis to what you know about diversity: Be a quick study in what makes the women and people of color in your organization tick. It's your department that's intimately involved with employment practice issues, so you're in the best position to advocate internally for new strategies that work. These new, fact-based strategies will also promote productivity and a good public reputation, among current and potential employees, customers and business partners.
The switch to Legal will send a strong message: We are serious about diversity. Take advantage of your access to bring real business value to your company. Be proactive in your advice to your companies. Make it part of your own success strategy to see that your companies don't continue fighting the same old battles. Be responsible for achieving the diversity results they need.
Judy L. Turnock, an attorney, is founder and president of Hunter Management Group, a coaching and diversity training company based in New York City. She is co-author of Cracking the Corporate Code: Real Success Stories of 32 African-American Executives, which will be published by the American Management Association in May 2003. For additional information, email: JLTHMG@aol.com.
From the March/April 2003 issue of Diversity & The Bar®