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Excerpted From: Angela C. Winfield, Upending “Normal”: Toward an Integrated and Intersectional Approach to Diversity, Equity, and Inclusion in the Legal Profession: Comment on Blanck, Hyseni, and Altunkol Wise's National Study of the Legal Profession, 47 American Journal of Law & Medicine 100 (2021) (Footnote) (Full Document)


AngelaCWinfieldDiversity, equity, and inclusion (“DEI”) in the workplace is a complex issue at any time and in any organization. However, in this time of great upheaval-- COVID-19, a renewed racial reckoning in the United States, and increased climate consciousness and social justice awareness--profound issues about work and the role of organizations are being raised simultaneously. This confluence of systemic issues highlights three critically important broad concepts that can help evolve our approach to addressing workplace inequities.

First, what we consider “normal” workplace practices has been upended. For instance, organizations have been forced to think more broadly about how and where work gets done. Many organizations, including law firms, never before would have thought it possible to run a successful law firm with a majority of attorneys and staff working remotely. Yet, it is being done. Additionally, although many organizations espoused the bottom-line benefits and the business case for diversity and inclusion prior to the killing of George Floyd, rarely did an organization privately, let alone publicly, decry the moral injustice of systemic, structural, or institutional racism. Yet, now it is being done. These shifts in practices beg the questions: What else can we do that has not yet been done? Can we upend the “normal” way we have approached diversity, equity, and inclusion work so we can improve outcomes for individuals from marginalized identities?

Second, intertwined systemic issues are coming to the forefront, and it is difficult to separate the issues from one another. The issues are inter-related, causing a cascade effect that is not necessarily additive. For example, the disproportionate impact of COVID-19 on individuals from marginalized identities, specifically Black and Latinx communities, stems from structural inequities in the health care system, the unavailability of economic and employment opportunities, as well as limited environmental planning choices in neighborhoods traditionally occupied by Black and Latinx communities, among other factors. It is difficult to address the disproportionate effect of COVID-19 on these communities in any permanent way without recognizing and addressing the common underlying structural inequities that run through each of these respective systems. This situation mirrors the identity-based concept of intersectionality introduced by Professor Kimberlé Crenshaw. In my mind, intersectionality matters whether at the individual, organizational, or societal level, and the impact of policies, practices, and behaviors ripple through multiple aspects of one's daily experience. How, then, can we leverage what we learn about intersectionality to advance equity and inclusion?

Third, the actual day-to-day and overall pattern of experiences of individuals from marginalized backgrounds matters and cannot be ignored. The concept of inclusion is both objective and subjective. It can be objective in that efforts and initiatives aimed at inclusion are often meant to be unbiased and without prejudice on the part of organizations and those implementing proposed solutions. Meanwhile, inclusion can also be subjective in that success is dependent upon the personal feelings and experiences of others. If the individuals that the organization is seeking to include do not actually perceive or experience themselves as being included, the objective efforts cannot be successful. The ideal form of inclusion means that one is not experiencing various forms of discrimination or bias and instead feels welcomed, valued, appreciated, and accommodated. Therefore, the reduction and eventual elimination of bias and discrimination is an important and necessary part of achieving an inclusive workplace.

In the legal profession, real opportunities exist to reexamine, reenvision, and transform the profession at multiple levels through upending “normal,” adopting an intersectional approach, and implementing targeted solutions to positively influence the real-world lived experiences of attorneys from underrepresented backgrounds. The first phase findings from the Blanck et al. study provide preliminary insights into some of the inequities experienced by attorneys-- namely, various forms of subtle and overt bias and discrimination. The study's methodology is a step in the direction toward a more holistic and intersectional approach and can serve as a springboard for developing cross-identity solutions for inclusion. These solutions can be strategically targeted at improving the workplace experience of attorneys.

In this Comment, I will offer my thoughts on the potential impact of the Blanck et al. research findings from the macro to micro levels--from the legal profession, to DEI practitioners in legal settings, and then to individual attorneys. I will also posit possible practical uses for the research. As the research findings are preliminary, my opinions are similarly preliminary and not set in stone. The possibilities, however, are quite exciting and leave me hopeful that we can further advance the profession.

[. . .]

One thing that is abundantly clear to me is that in addition to the systemic changes that need to occur in the profession, we cannot lose sight of the real, true, lived experiences of attorneys. We cannot make progress and advance the profession with respect to diversity until and unless we substantially improve the experience and outcomes for attorneys with marginalized identities. The frequency of subtle and overt bias and discrimination experienced by attorneys with marginalized identities must change. To create this change, we must look at and address our own personal behaviors and interactions and the conduct of our fellow colleagues. What we say and do, how we behave, and how we treat our colleagues, whether directly or indirectly, matters.

Similarly, this level of change ought to extend to, and include the way in which, DEI practitioners approach transforming cultures in legal organizations. Specifically, I think an interdisciplinary approach that draws from the experiences of individuals from various identities and in various legal settings is required. We do not need a silver bullet for solving this problem; but we do need thoughtful and strategic tools and approaches that change behavior and culture. To the extent we can find, develop, or create solutions that we can leverage across boundaries, all the better. If not a grand unified theory, we at least need to apply the learnings from disparate fields and disciplines to find solutions that move us forward toward increased equity and a stronger sense of real inclusion.

What changes does the legal profession think that it cannot make? Can we really not make them? Or, are the needed changes simply counter to how things have been done or to what has been considered “normal?” We need to be open-minded about solutions and be willing to do what is necessary rather than what we think is possible. I encourage legal organizations to lean fully into upending and disrupting other aspects of what, to this point, we have considered “normal” because “normal” is no longer working. The current “normal” is not allowing the legal industry to fully benefit from the talents, innovations, advancements, and even bottom-line profits that accrue from employing the best, most diverse attorneys. Through continued research, collaboration, and a more unified approach, let us build a new, inclusive normal that really works.

Associate Vice President for Inclusion and Workforce Diversity, Cornell University.

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