Reward or Punish? It’s Time to Take a Different Approach to Diversity and Inclusion

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Carrot vs. stick

The business case reigns as the premiere motivation to improve diversity and inclusion in the legal profession. In a capitalist society, businesses and individuals strive for increased profit and the business case says lawyers and law firms stand to gain financially by being diverse and inclusive. Yet, there hasn’t been sufficient progress towards that end. In “the carrot vs. the stick” analogy, increased profit represents the enticing carrot. Being fired for failing to meet D & I expectations represents the menacing stick. The first is positive motivation while the latter is negative motivation. 

Corporations possess considerable political power when diversity and inclusion is concerned. This power loses its authenticity and significance when corporations do not fulfill their promises of ending relationships with law firms that fail to meet its diversity and inclusion approach. The stick starts to lose its menacing quality and becomes neutralized as organizational and professional motivation to change for the better diminishes. 

This is not a hard concept to understand. Yet, it has become a process that is hardly executed.

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Stop rewarding bad behavior.

When positive behavior is rewarded, that behavior is repeated and even improved in the hopes of achieving better rewards. Those rewards can be tangible, like monetary or in-kind items (think: a child’s allowance is increased as their grades increase; or, an associate attorney receives a bonus when they’ve met or exceeded billable hour requirements). Rewards can also be intangible, as in the case of social capital: political power, authority, recognition for expertise, respect from peers, more access to elite and exclusive the social networks. It’s as simple as: “I did well. I got a reward. I want another reward. I will do well again, or I will do even better.”

Failing to fulfill the promise of meting out consequences has the opposite effect on behavior. We can think of it this way: “If I do X, Y will occur as a result. If Y never happens, what’s stopping me from doing X again and again until Y actually happens?”

Do what you say you’re going to do.

Law firms’ failure to advance D & I and their failure to meet corporate clients’ D & I expectations are almost never punished. As a Black gender nonconforming lesbian woman, I can’t help but scoff during conference panels when in-house counsel proclaims their commitment to “taking their business elsewhere” when confronted with law firms that do not align with their organizations’ D & I values and expectations.  As a researcher and advocate of social justice, I am amused by, yet curious about, corporations’ and corporate law departments’ failure to act. 

While terminating a business relationship with a law firm can be complicated and difficult, these corporate clients must start the process. Walmart’s law department is an example of a corporation using innovative institutional techniques to onboard diverse lawyers. Their program is called Walmart Ready and it trains women and diverse lawyers on Walmart’s business, company culture, and legal operations. 

It’s time to force change by severing ties with law firms that are not serious about D & I. There are far too many qualified minority- and women-owned law firms and lawyers who deserve access to opportunities usually reserved for majority white and male law firms. 

By: Takeia R. Johnson