The Legal Intelligencer - We Cannot Relent: The Need to Remain Resilient in Your Firm’s DEI Efforts
As a co-founder of three women-owned businesses, advocating and educating on diversity, equity and inclusion (DEI) in the workplace has been an important part of my career over the last 13 years. Not only is it a passion of mine to help support and amplify underrepresented voices, but from a business owner’s standpoint, it becomes a competitive advantage to have as many differing backgrounds and perspectives around the decision-making table. Working in the legal industry gives rise to many challenges when it comes to DEI in our firms and legal departments. Improving inclusion and belonging in the legal industry has not been without setbacks and roadblocks. However, we are now facing a new tidal wave aimed at broadening the distance we have traveled to improve DEI in our industry. In early August, my business partner and colleague, Francine Griesing, wrote an article entitled “A Slippery Slope: The Erosion of DEI in the Legal Profession and Beyond” which discussed three important diversity and inclusion initiatives happening in the United States. Her article focused on the Supreme Court’s decision rendering unlawful use of affirmative action in education admissions decisions, the losses stemming from banned books, and the growing censorship of DEI initiatives – both at the private and public sector levels. As you will read below, the most recent threats to dismantle DEI in the U.S. are now aimed at the legal industry, but we cannot relent against these attacks and instead must remain resilient with our DEI efforts now and well into the future.
The Attacks on DEI Have Reached New Heights
In the months since affirmative action became unlawful in education admissions, there have been at least three blatant attacks on DEI efforts and initiatives in the private corporate sector – two of which were aimed at Big Law. The first shot set its sights on The Fearless Fund, which “invests in women of color-led businesses seeking pre-seed, seed level or series A financing. Our mission is to bridge the gap in venture capital funding for women of color founders building scalable, growth aggressive companies.” For those not familiar, in early August 2023, the American Alliance for Equal Rights (AAER) sued The Fearless Fund, under the guise of – of all things, a discrimination lawsuit. Using a radicalized version of viewpoint diversity, AAER “alleges the grant program excludes some of its members who are not Black women” which is discriminatory and unlawful. The Black Economic Alliance Foundation recently filed an amicus brief in support of The Fearless Fund, which also has the support of the NAACP Legal Defense Fund, and the National Women’s Law Center. While The Fearless Fund did agree to withhold issuances of new grants while the preliminary injunction is decided, Arian Simone, CEO and co-founder of the Fearless Fund declared, “This attack does not change our mission… we will remain steadfast on ensuring that the Fearless Fund will continue to empower women of color entrepreneurs.”
Later that same month in August 2023, AAER also sued, in two separate lawsuits, both Perkins Coie LLP and Morrison & Forester LLP, for alleged violations of Section 1981 of the Civil Rights Act of 1866. AAER “claims that the law firms’ respective diversity fellowship programs for summer associates discriminate based on race.” Perkins Coie has publicly stated that it will “vigorously” defend the lawsuit, with content on its website reading “As we consider [the] Supreme Court decision limiting the consideration of race in university admissions, we re-affirm our commitment to building a more diverse and inclusive workplace and legal profession.” Unfortunately, Morrison & Forester have already caved to the pressure of the AAER lawsuit as it recently changed the eligibility criteria for its DEI fellowship. The firm’s Keith Wetmore Fellowship for Excellence, Diversity, and Inclusion, created in 2012, is now aimed at 1L and 2L law students “with a demonstrated commitment to diversity and inclusion in the legal profession.” And it is not just those two Big Law firms who have already been sued who are caving. According to Above The Law The Law, Gibson, Dunn, and Crutcher, who happens to be lead defense counsel for The Fearless Fund, preemptively changed the criteria for its 2L diversity scholarship to now read “[eligible students include those] who have demonstrated resilience and excellence on their path toward a career in law.” Both Morrison & Forester and Gibson Dunn apparently recently retooled their fellowship language as both firms previously had aimed their fellowships and scholarships to law students in “historically underrepresented groups.”
Remain Steadfast in All Your Diversity Efforts
The truth of the matter is that these potshots should have been expected as our country remains politically divided and we will again see attacks from both sides of the aisle as we gear up for the 2024 Presidential Election. While viewpoint diversity has been around in educational institutions for over 20 years, it has now become a radicalized weapon for taking aim at those who wish to support and advocate for underrepresented groups. Using viewpoint diversity as the catalyst for these alleged “discrimination” suits is alarming to say the least but we must remain steadfast in our DEI efforts. We must not lose the focus and goal of becoming a more inclusive and diverse industry. Firms and law departments should always be looking to fine-tune their approach and initiatives but not while on the defense. DEI programs are good for our industry – both our employees and our clients – and we cannot lose the momentum we have created by capitulating now.
While surface-level diversity gets the most attention (and is the main crux of these recent lawsuits) because it is often the focus as this is the type of diversity that we all can see with our eyes, we must remember that it is not the only type of diversity initiatives our industry needs to support. As I have written before in my article “More More Than Meets the Eye: Tackling Deep-Level Diversity in the Law Meets the Eye: Tackling Deep-Level Diversity in the Law,” there is so much more to diversity that what we see. As September comes to a close, and as I prepare to co-host an annual memorial bowling tournament in memory of a lifelong friend who unexpectedly took his own life in 2012, and with all life is throwing at us right now, please take a moment to ensure that your DEI efforts include mental health awareness and support (including your own!). The American Foundation for Suicide Prevention recognizes the entire month of September as National Suicide Prevention Month which the organization says is “a moment in time in which we rally the public to create awareness of this leading cause of death, and inspire more and more people to learn how they can play a role in their communities in helping to save lives.”
It is more important than ever before to stand behind your DEI efforts and continue to build upon the (small) amount of progress our industry has already made.
Goodbye to Bullies; Support the Underdog; Keep Moving Forward
It amazes me that certain people today, in 2023, are still hell-bent on finding problems with achieving equality and equity in America. While what is happening now is not comical in any way, reading these headlines that keep popping up give me such Regina George, of Mean Girls infamy, bullying vibes. Regina George was a classic bully – using threats of intimidation coupled with acts of exclusion to get her way – basically a ‘my way or the highway’ mentality. And if you saw the movie, then you know that Regina George could be vile and ruthless when anyone stood in her way or up to her antics. The underlying support for viewpoint diversity, in the context that it is being used now in weaponized attacks on DEI efforts, is a bully tactic like no other. But I have faith we can get rid of this bully and keep going to move the DEI needle in our industry and beyond. Because as it turns out, when someone finally stood up to her, people realized that no one actually likes Regina George or what she stood for which left her quietly alone to live in her own misery.
Never in a million years would I have thought I would be writing that the legal industry needs to be the unlikely hero, David, in what is gearing up to potentially be a David v. Goliath battle. But I find myself thinking that if there was ever an underdog story where we needed a great comeback win, then I would say this is it. The legal industry has been fighting an internal battle for almost the existence of our profession when it comes to being more diverse, equitable and inclusive. However small the recent steps our industry has been taking to move the needle, just as we are making traction, we certainly cannot back down now. DEI initiatives have always been about doing the right thing and, collectively as an industry, we cannot lose focus of that – no matter the threat. Like most awful things, we should remember that when it comes to the recent attacks on DEI: this too shall pass. We need to stay strong, stand tall and remain resilient in our efforts to continue making our industry as diverse, equitable and inclusive as possible. So do not be a Regina George, be a David, you will sleep much better at night – trust me.
Reprinted with permission from the September 28, 2023 issue of The Legal Intelligencer. © 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.