On Systematic Racism

“The place to improve the world is first in one's own heart and head and hands, and then work outward from there.”

“You are never dedicated to something you have complete confidence in. No one is fanatically shouting that the sun is going to rise tomorrow. They know it's going to rise tomorrow. When people are fanatically dedicated to political or religious faiths or any other kinds of dogmas or goals, it's always because these dogmas or goals are in doubt.”

Zen and the Art of Motorcycle Maintenance: An Inquiry into Values

I started practicing law in the 1980s in New York and was blessed to be hired by a Wall Street firm that had a relatively diverse group of partners and associates for its time. There were many Jewish partners, one black partner, an Asian partner, several women partners, two black associates and two Asian associates. Although I am a white man, I very much felt out of place at the firm. I was not raised in New York or on the East Coast and had no family there. The culture in New York was very different from the other places in which I had lived. My spouse was from another country and was not a native English speaker, my son is mixed race and I am neither Christian nor Jewish. Thus, it took me a while to learn the cultural rules of the road when interacting with other lawyers and staff at the firm. For several years, I felt like an outsider with little in common with my colleagues. And as one newly minted partner recommended, I just did my work and otherwise kept my “mouth shut and head down.”

From my perspective the firm had a very East Coast vibe, which makes sense given that it was a New York law firm. Most of the partners and associates were raised and educated on the East Coast and came from upper middle class or wealthy families. In addition to their East Coast upbringing the majority of the attorneys had studied abroad, typically in England or France. “I studied at Oxford to learn about our roots and traveled around France and Italy to learn about culture,” I remember one woman junior partner telling me. They had little interest in non-US countries outside of Europe. Few had studied a foreign language other than French or ancient Greek or studied abroad in Latin America or Asia.

Notwithstanding the many Jewish partners and associates at the firm, it also had an unmistakably WASPy or “white shoe” feel. Many partners had letters for first names and/or they had Jr., II or III at the end of their name. Some lawyers spoke of their time studying at Choate, Exeter or Trinity, their ancestors who had arrived on the Mayflower and/or their secret society at Harvard or Yale. It was the first time I heard the term noblesse oblige spoken out loud.

Fast forward thirty-five years and the firm where I currently practice is far more diverse. There are many more women, Asians, Latinos, blacks and openly gay lawyers in the partnership and among the non-partners. The incoming associate class each year is at least half women and racially and ethnically diverse. Moreover, the firm recruits from a much larger pool of law schools than it used to; new hires are no longer plucked only from the Ivy League law schools. Over the years I have not just embraced but actively supported this growing diversity and wanted everyone to feel as included as possible, because it is good for business, I enjoy being around people from diverse backgrounds, I don’t want any of our associates and staff to feel like an outsider as I once believed myself to be, and I want to set an example of how all people should be treated.

The reason it is good for business is the secret to the success of the United States of America and other capitalist countries that have emulated it. The ability to work with people from different ethnicities, countries, sexual orientations and religious traditions enables different ways of thinking and different ideas to be shared, combined, synthesized and improved upon in ways that would not be possible if people from different “tribes” were not interacting with a common purpose. It’s a wonderful form of cross pollination that breaks through traditions and dogmas to create something new and better.

It is not always easy, however, to be objective with respect to those who are different from you. Sometimes I have struggled to put aside my personal feelings and biases, which we all have, when dealing with people whose personalities I did not like. I had to step back and think why do I dislike this person? Is it because they are a bad lawyer or a bad staff member? If the answer was no and I realized that despite my lack of affinity for the person they were excellent at their job, I had to put aside my personal feelings and support them, because it was in the best interest of the practice and the firm. This is a process that we as professionals all need to engage in for the benefit of the practice, our clients and the firm.

Recently, however, I have become concerned that the culture of wokeness may be causing us to take diversity and inclusion too far. I am a true believer in Martin Luther King's hope that we will all judge people by the “content of their character.” But instead of looking past a person’s color to their character more and more we seem to be doing the opposite in the name of equity; we seem to be getting dangerously close to making hiring, retention, training and promotion decisions based primarily on people’s color, ethnicity, sex, sexual orientation, gender identity and/or religion. There seems to be an unwritten goal at some law firms and corporate clients to make the demographics at law firms reflect the racial, ethnic, sex, LGBTQ+ and religious demographics of the general population whether that makes sense from a merit standpoint or not and regardless whether some groups of people will self-select out of the partnership track more often than other groups and for reasons unrelated to discrimination.

Such an express goal would be discriminatory on its face, whether it be racism, sexism, homophobia, transphobia, discrimination based on religion or some other type of bigotry. This identitarian focus is dangerous, because it breeds intolerance and pushes us back into our tribes. Add to that intersectionality and we are creating additional tribes based on classes of victimhood.

As an example of a lack of tolerance, internally we preach in the name of our Diversity and Inclusion program (many firms have recently added the term “Equity” to the name of their program, thereby demonstrating the influence of critical race theory on law firm management, which in our firm seems pretty clear given the overt use of such terms as equity, white privilege and allyship) that it is important to have discussions about race and racial issues and each year we arrange forums for these discussions to take place. But they are anything but discussions. They are more like religious services at which the audience is expected to listen in polite silence as someone from a minority or so-called marginalized group discusses a woke identitarian issue such as intersectionality. Anyone brave enough to ask a question that even hints at being suspicious of woke ideology is treated as a heretic by having their question dismissed (or if the meeting is held by Zoom, not even read) and more insidiously is branded far right or “conservative.”

In fairness the lack of discussion is due in part to people wishing to be liked and avoid being disliked and in part because lawyers are reluctant to speak up internally about matters which they think they know little about or with respect to which they think they may be missing something. This latter part in particular can be an issue because more than a few lawyers at the firm are unfamiliar with many of the woke or critical race theory terms that are used during some of these discussions and do not wish to be thought of as ignorant. But there is also no room for dissenting voices or alternative opinions to those presenting.

Also, all of the speakers we invite for our diversity and inclusion functions lean left and sometimes are on the radical left or at least very progressive. The firm never invites diverse voices from among conservatives or the right notwithstanding that there are many excellent scholars and speakers who are black or Asian or Latino who could provide a different perspective from that we are hearing from all of our leftist speakers. Thus, contrary to the name of our Diversity and Inclusion initiative, there is no diversity of political thought and there is no inclusion of conservative voices.

Another example of this woke trend at the firm are the annual meetings of a small group of partners from the firm’s management team to discuss “women’s and underrepresented people’s” issues. At the beginning of each of these meetings the moderator or moderators, who are always leaders of our Diversity and Inclusion initiative and women’s affinity group, proclaim that we are among friends and anyone is free to ask questions or comment without fear of ridicule or reprisal. But no man (whether they be white or not) from the US ever speaks at such meetings. We have all been cowed into submission. At the first two of such meetings a few partners from non-US offices (I remember one meeting at which a black African male partner spoke up and another at which a Singaporean female partner spoke up), who evidently didn’t get “the memo” that we don’t actually discuss such things in public forums, expressed incredulity about what was being said and/or a contrary view and/or asked a question suggesting a lack of faith in the woke orthodoxy being espoused. They were shut down quickly and usually derisively for “not understanding” or “being intolerant.” Unfortunately, it has been my experience that the very partners preaching the need for tolerance and listening to “other voices” who are the most intolerant and least likely to listen.

At one such meeting, when confronted with the statement that at least half of each new associate class are women but only a small fraction become partners or are on the Executive Committee a partner asked to know the cause. The response was that this is clearly a problem, but there was no answer to the question about causation. Correlation is often confused with causation in these discussions and disparity is equated with discrimination notwithstanding that there may be myriad reasons other than discrimination for differences in representation in any given activity.

But these sometimes racist approaches to diversity at law firms are not happening in a vacuum. They are being pushed by clients, as evidenced by an open letter in 2019, from 170 general counsel at large corporate clients to big law firms, expressing disappointment with the largely white and male new partner classes at some major firms and admonishing them to do better to make their partnerships more diverse. Many general counsel at major clients also demand diversity among law firm teams serving them. They often ask how many women and people of color will be on the team handling their matters or a particular matter. Some even go so far as to demand that a certain percentage of the teams working on their matters be women and ethnic minorities.

It’s always good business for law firms to give clients what they want. And many clients don’t care what the reasons for having a mostly male and mostly white partner class are; they want results and that means actual racial, ethnic, sex, sexual orientation and other types of diversity. At the same time clients pay lip service to wanting the best and brightest handling their matters in addition to wanting diversity. Does that mean firms and clients will be promoting the best and brightest? If the goal is equality of outcomes based on the demographics of the population at large or even the incoming associate class, the answer is no. Equality of outcomes is antithetical to equal opportunity. You can’t have both.

The information is only anecdotal but there seems to be an increase in what are called “reverse discrimination” lawsuits, which is a misnomer. They are just discrimination law suits brought by white men. As one practitioner said, “If employers feel that because someone is in a certain demographic, they’re afraid to take action, that’s not what the law requires at all. The law allows employers to make decisions on the basis of just about anything, good or bad, as long as it’s not age or race or religion or gender or place or orientation. The law clearly applies to all people exactly the same way. It protects everybody.” There also seems to be an increase in discrimination claims by Asian men in connection with hiring, retention, training, termination and promotion practices as more Asians make claims that they are discriminated against in favor of women or men from other racial or ethnic groups.

Only time will tell whether this trend will continue. Also if talented and motivated white and Asian men are excluded or no longer feel valued or treated fairly at law firms will this cause them to leave and set up their own law firms like Jewish lawyers who were excluded from Wall Street firms did decades ago?

Diversity and inclusion programs at law firms, some of which have been in place for twenty or thirty years, will do well if the priority is providing equal opportunities for all lawyers, assuming equivalent abilities and effort. That will be good for business because it will create robust environments for competing ideas, which means better results for clients, and clients are demanding diversity. But if these programs continue to be used to stifle free speech, instill dogmatic behavior and/or the purpose becomes to guaranty equality of outcomes or make up for past discriminatory behavior in the firm or at society at large then long term I predict they will fail. “Variety is the very spice of life,” but the implementers of these programs need to keep in mind that correlation does not equal causation and disparity does not equal discrimination.