Tuesday, November 21, 2017

Cheryl L. Wade

 


excerpted from: as Corporate Social Responsibility: Empathy And Race Discrimination , 76Tulane Law Review 1461-1482, 1469-1480 (June, 2002) (73 footnotes)


Even before companies such as Texaco and Coca-Cola paid huge amounts to settle racial discrimination suits, Professor Charles D. Watts, Jr. linked "unique aspects of [American] society" to the persisting and long-standing problem of "racial discrimination in employment." Watts observed that some economists conclude "that the market will, in fact, eliminate racial discrimination in the long run" because it is not profitable. "Have we not had a long run experience with racial discrimination? When will this lengthy intermediate period come to an end?" Professor Katherine V.W. Stone also considers the economists' theory that discrimination is "irrational and inefficient," observing that economists have been wrong in predicting that discrimination's inefficiency would lead to its demise.


While some academic scholars have considered the intractability of racism in large publicly held companies, books on corporate governance are silent on race issues. These are the books most likely to be consulted by corporate boards and managers, because they offer practical consideration of appropriate directorial and managerial behavior. The books cover good times and times of crisis, but they do not offer advice about how to avoid debacles such as those that occurred at Texaco, Coca-Cola, and other companies, which culminated in huge financial settlements paid to racial discrimination victims. Considering the evidence of continued racial discrimination and harassment, it seems that corporate officers and directors are not thinking or talking about race and racism withintheir corporations other than in the most superficial ways.


Professor Ian F. Haney Lpez has written about the pervasive importance of race in all areas of the law. "Race suffuses all bodies of law . . . even 'the purest of corporate law questions'. . . . [N]o body of law exists untainted by the powerful astringent of race in our society." Lpez emphasizes the structural nature of racism in the United States and argues against the predominant belief that racism is a disease that primarily affects individuals. He describes the factual reality of institutional racism, writing that the failure to acknowledge racism in America's institutions "not only fails to challenge but reinforces a crucial cultural and political myth, that every element in U.S. society is committed to equality and social justice for racial minorities."


If race "suffuses all bodies of law," why aren't corporate lawyers, managers, officers, and those who advise them writing and talking more about race? Why aren't boards and officers creating and implementing the types of effective monitoring systems that may more capably confront workplace racism until they are forced to do so after racial discrimination litigation is filed? What can convince corporate directors and managers to live up to the fiduciary duty of care they owe shareholders to monitor compliance with antidiscrimination law in a way that would better achieve internal corporate social responsibility that may have external or societal impact? My initial consideration of these questions led me to an intuitive conclusion that empathy may be a prerequisite for real corporate social responsibility.


Empathy, as used in this Essay, is defined as the "[i]dentification with and understanding of another's situation, feelings, and motives." "Empathy . . . is more than an intellectual predisposition, or belief; it is a readiness to be engaged in the experience of others." "Empathy has been variously described as a . . . process, . . . a mode of observation, and an information-gathering activity." Initially, I thought that understanding the situation in which many people of color find themselves in companies with racially toxic cultures, would lead to effective monitoring of discrimination. I was drawn to definitions of empathy that described it as a "process" and an "information-gathering activity" because satisfaction of the duty of care is itself a process of information gathering. Perhaps, I thought, empathy for people of color would inspire adequate monitoring of corporate compliance with antidiscrimination law, and such monitoring would foster further understanding of the discrimination faced by people of color. In other words, empathy may inspire satisfaction of the duty to monitor, and the monitoring may foster further empathy.


The role that empathic consideration plays in legal decision making has been examined in a variety of contexts. Professor Estlund has explored the possibility of empathy in the workplace, writing, "Through informal social interactions, employees often learn about each others' lives and develop feelings of mutual understanding . . . [and] empathy." Even while acknowledging the inevitability of empathy, or its potential value in legal decision making, however, scholars have recognized empathy's shortcomings and limitations.


First, one component of empathy is finding similarities with the object of empathic understanding, or analogizing the other's situation to that of the one who empathizes. The comparisons that inspire empathy, however, obscure important distinctions and reduce the possibility for true understanding of another's circumstances. Second, some scholars conclude that "we think we-and others-have much more empathy for the downtrodden than we, in fact, do" and that this kind of "[f]alse empathy is worse than indifference . . . . It encourages the possessor to believe he is beyond reproach." Third, "unequal power arrangements can block any instinct toward empathy." Fourth, a single decision or situation may give rise to competing claims for empathy. In a criminal case, for example, one can empathize with the victim or the defendant, depending on the circumstances that gave rise to the defendant's conduct. Finally, "empathy does not guarantee that our emotions will lead us to act in an ethical or just way."


Understanding empathy's shortcomings may begin to explain the entrenchment of racism in the workplaces of large publicly held corporations. White managers and directors, successful themselves, are not likely to understand the impediments to success faced by many people of color. Much of the racial discrimination that occurs in the workplace is unconscious. The privileges enjoyed by whites in the workplace remain unnoticed by the beneficiaries, masked by discussions of meritocracy. Any unfairness faced by a white male in the workplace may be used by him in an attempt to understand the unfair treatment of people of color. The comparison between his own situation to that of minority employees will produce, at best, a superficial understanding of racial inequities faced by employees of color. His attempt to understand, to empathize, will place him beyond reproach, leaving him unable to recognize any unconscious bias in employment decision making.


Inequities in power arrangements within a company may also preclude white managers from empathizing with employees of color. Moreover, the manager must grapple with several competing claims for empathy. He is required to "empathize" with shareholders, and must also attempt, in some instances, an understanding of situations faced by nonshareholder constituencies. Finally, even if managers and directors find a way to understand workplace racial realities adequately, they may not be moved to make changes.


Because empathic understanding of people who are different from the one who empathizes is difficult, or perhaps impossible, as some have argued, taking action to enhance empathy for people of color is not the solution for persistent workplace racial inequities. Empathy is not the solution, empathy is the problem. "Empathetic feelings toward members of one's own racial group . . . explain indifference or even hostility toward members of other racial groups." Empathy for others who are similarly situated is not difficult, and in the workplace, this may mean that corporate managers and directors, almost all of whom are white and male, will easily empathize with corporate constituents who are most like them.


Enhancing empathy for people of color is not a viable resolution of the persistent problem of racial discrimination. Ubiquitous empathic understanding on the part of corporate boards and managers for other white males, however, may begin to explain why racism persists in large companies. White men are hired more easily, promoted more frequently, and paid more than people of color and women because they are most similar to the white men who make these corporate decisions. Senior executives and directors may fail to investigate and monitor compliance with antidiscrimination law because they empathize with the white men who are hired, promoted, and paid more. At the same time, they may not be able to empathize with their employees of color.

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