Photograph of Norris Cunningham. Norris is an attorney with Katz Korin Cunningham in Indianapolis and is the Chair of the Health Care Law Practice Group.

DTCI: The roots of diversity and making good business sense

01.20.2021 Written by Norris Cunningham

The business case for diversity is, in almost every respect, unassailable. When companies invest in and promote a diverse and inclusive workplace, they gain benefits that go far beyond the optics. In the case of law firms, assembling a team of attorneys with diversity in terms of race, gender, ethnicity, religion, political beliefs, socioeconomic background, sexual orientation and disabilities drives innovation; leads to a culture of creativity; ensures a more holistic approach to problem solving; and results in better outcomes for clients.

Another aspect of the business case for diversity is that clients demand it. They want to know that you have a diverse team of attorneys to work on their issues. Our clients are increasingly diverse and the legal profession must be so as well. Thus, the most important consequence related to the business case for diversity is that if you fail to do it, your business will likely suffer. Like Santa Claus, many clients are making a list and checking it twice (or at least annually)! For example, many organizations send questionnaires to law firms on a regular basis wanting to know about hiring practices and the composition of the team that works on their matters. In academia, the mantra is “publish or perish.” For law firms, it is “diversity or doom.” So again, the business case in favor of a diverse workforce is strong and unassailable. Law firms, like other businesses, have a profit motive at their center. Thus, one might conclude that the business case for diversity — the fact that it increases the bottom line — is the most salient reason for a diverse workforce. But is it? Some might argue that the roots of diversity involve a loftier goal than the profit motive. Perhaps a brief examination of that history will help.

Any history of diversity initiatives, however brief, should start with the well-worn phrase “affirmative action.” That phrase was first used in the United States in Executive Order 10925, signed by President John F. Kennedy in 1961. The goal of the program was to promote actions that achieved nondiscrimination in the government workforce.

In 1965, President Lyndon B. Johnson issued Executive Order 11246, which required government employers to take “affirmative action” to “hire without regard to race, religion and national origin.” In 1967, gender was added to the antidiscrimination list.

B.E. Vaughn in his work “The History of Diversity Training and Its Pioneers” noted that diversity education and training in the private sector started as a reaction to the civil rights movement and demonstrations by activists who were intent on creating a more just and equitable society for people of color — in particular, African Americans.

Vaughn noted that the stated justification for affirmative action by its proponents was that it helped to compensate for past discrimination, persecution and exploitation by the ruling class and to address existing discrimination. Thus, “diversity” as we know it today was founded upon the notion that the American majority should work to remedy past discrimination, persecution and exploitation of minority populations.

Why is it important to address the issues and consequences of past discrimination against minority groups? Simply put, that is what a just society does. Should not a society founded upon the notion that all men are created equal take steps to remedy the inequality of opportunity that is at the heart of past discrimination and the cause of so many racial disparities that continue to haunt our republic?

So the diversity journey on which many of us have embarked is not rooted in the goal of increasing the bottom line for American companies. That is certainly a great selling point for any article on diversity that you might find in the Harvard Business Review. Moreover, that aspect is likelier to get the attention of the managing partners of the AmLaw 100. However, the historical context at the root of diversity is this country’s unending quest for social justice and racial equity. Put succinctly, it is our desire to form a more perfect union.

Our challenge then is to consider our respective diversity initiatives within the larger contexts of social justice and racial equity. And while its roots may be largely defined in terms of the African American experience, we know that systemic racism and discrimination have marred the experiences of Native Americans, Asian Americans, Hispanics, women, religious minorities and others. In the words of the great James Baldwin, “Not everything that is faced can be changed, but nothing can be changed until it can be faced.” Baldwin would certainly agree that our diversity journey is all about facing change.•

Norris Cunningham is a shareholder in the Indianapolis firm of Katz Korin Cunningham and serves on the board of directors of the Defense Trial Counsel of Indiana. Opinions expressed are those of the author.