The DEI Stalemate: Paying the Price for the Wrong Move - Part 2

Three Ward and Smith attorneys described what can happen when a DEI initiative goes wrong, placing an organization in a legal stalemate with its employees. 

Part 2 of The DEI Stalemate builds on the lessons learned in the first session, focusing on practical strategies for implementing successful DEI initiatives without legal missteps. Attorneys X. Lightfoot, Avery Locklear, and Ken Gray continued the session with a training exercise the team has used successfully in the past, intending to share it with the in-house counsel present so they can see the impact of the exercise-first hand.

The Privilege Walk

The privilege walk is a moving exercise the firm has used to illustrate how extraneous factors impact our lives. Lightfoot shared a stirring personal experience to get started, the crux of which is that the notion of privilege is situational in some respects. What may be viewed as an advantage to some could be viewed as a disadvantage to others, depending on the time, place, or circumstances.

“Ken and I have taken the lead on Ward and Smith's internal DEI training. We are fortunate in that we’ve built enough trust such that we can engage in some very impactful conversations,” Lightfoot commented. “One activity that received overwhelming positive success was the privilege walk.”

He then asked a few team members to assemble in a horizontal line at the other side of the room. Gray explained “that the activity involves a number of statements related to your identity and relationship to privilege. The intent is not to embarrass. Instead, the goal is to make visible our privileges or lack thereof in a friendly and trusting environment.”

The volunteers were asked to take one step forward or one step backward based on how they identified with certain questions. “If a question is irrelevant, ambiguous, or you just don’t want to respond, you can stand still, please just try to keep your steps the same length,” noted Gray.

Aside from proving it’s impossible to judge a book by its cover, the exercise showed how various factors influence our lives. Gray asked the volunteers to move based on the following:

• If either of your parents graduated from college, then take one step forward.
• If you ever had to skip a meal because there was no food in the house, then take one step backward.
• If one of your parents was ever laid off or unemployed, not by choice, then take one step backward.
• If you were ever questioned by the police because they felt you were suspicious, then take one step backward.
• If you were ever offered a job because of your association with a friend or family member, then take one step forward.
• If you’ve been divorced or impacted by divorce, then take one step backward.
• If you or your family ever inherited money or property, then take one step forward.
• If you ever felt unsafe walking alone at night, then take one step backward.
• If your ancestors were forced to come to the United States, then take one step backward.
• If you were raised in a supportive family environment, then take one step forward.
• If you’ve ever been bullied based on something you cannot change, then take one step backward.
• If you traveled abroad as a child, then take one step forward.

The volunteers were spread across the room by the end of the exercise. “We could continue asking questions all day; the point is we’ve all had certain life experiences that we’ve had no control over whatsoever. These experiences place us in different locations with certain opportunities and privileges,” Gray said.

Discussing privileges in DEI training can make people feel offended. “But if you do the training in a way that is not attacking anybody and instead just evaluate how people have had different life experiences, the walls come down and the audience typically responds a little better,” noted Gray.

When blame is not involved, most people agree that everyone should be treated fairly. “There are a lot of poorly executed DEI practices, but I think this exercise is one of the good ones, and I’d like to give X. some credit because he was the author of this,” Gray added.

Approaching the training in a nonthreatening manner is critical. “When our clients ask us to come in and do some DEI consulting, or we do some training, we focus on mutual respect, kindness, collaboration, and teamwork,” Lightfoot commented.

The outcome of many DEI programs based on understanding privilege is that certain groups end up with negative feelings because of extraneous factors. “We just focus on treating people how we would like to be treated,” Lightfoot explained, “so we really work to flip the conversation about privilege on its head.”

The Business Case for DEI

Understanding that recruiting the brightest possible minds is going to have an impact on the bottom line, businesses need to embrace DEI policies. “Employees expect DEI initiatives, especially the younger generations, so if you want to attract and retain innovative young minds, you need to develop a strategy to reach a diverse demographic,” said Lightfoot.

When people believe there is opportunity and the potential for growth, they work to make a stronger contribution. “If you enjoy coming to work and enjoy your job, you’re going to do a better job, so there is an absolute business case for having an inclusive work environment,” Gray commented.

He added that recognition and positivity have been essential to the firm’s success. “We want everyone to feel like they are a vital part of the team. We are a firm but we are one entity, we’re only as good as the team can function,” said Gray.

Thanking everyone for their contributions is critical. “We want everyone to feel like, ‘Hey, I’m part of this.' And when you get everybody on that page, you have a successful organization,” noted Gray.

Conclusion

Numerous studies support the idea that more diverse and inclusive companies outperform their competitors. “The research is out there and we can provide it to you. We would also be glad to do a presentation at your organization, so please feel free to reach out,” concluded Lightfoot.

This article is part of a series highlighting insights from our 2024 In-House Counsel Seminar. More insights are below.

• The House Advantage: Wisdom from In-House Counsel
• Upping the Ante: New Rules and Regulations in Play for In-House Counsel
• The DEI Stalemate: Paying the Price for the Wrong Move - Part 1
• On a Roll: Hot Topics for In-House Counsel
• The Five Foundations of Artificial Intelligence for In-House Counsel, Part 1

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This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.

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