#571: What DEI Really Means for Small Law Firms, with Tanya Hernandez

Episode Notes

Transcript

Zack Glaser:

Hey y’all, it’s Zack and this is episode 5 71 of the Lawyerist Podcast, part of the Legal Talk Network. Today, Stephanie talks with Professor Tanya Hernandez from Fordham Law School about how law firm owners, especially those with small teams, can think differently and more intentionally about diversity, equity, and inclusion in their workplaces. They explore the legal roots of DEI, common misconceptions and practical ways to create more inclusive firm cultures without performative gestures or fear of backlash. But first I have a question, and maybe even a hill allt die on, is there a correct way to load the dishwasher? Now, this may be a correct way in your house, it may be a correct way. I don’t know fundamentally, but is there a right way and a wrong way to load the dishwasher? For me, the answer is yes. In our house, you have to put the bowls in the right place, you have to put the trays in the right place.

The mugs have a specific place they go, and spoons, forks, and all of those things actually face up at our house because they go in a little basket to the side and they have this little grid that allows them individually to sit there. So there is a specific way, I guess, I don’t know if it’s the right way, but there is a specific way to load a dishwasher in our house. And quite frankly, I’d be curious to know how other people feel about that. I think this is something that might either care about or you really just don’t think that I’m crazy right now, but in my mind, and again, I will die on this hill. There is a correct way to load the dishwasher. Anyway, that’s my rant for the week. Now here is Stephanie’s conversation with Professor Hernandez.

Tanya Hernandez:

Hello everyone. My name is Tanya Cat Hernandez. I’m a law professor at Fordham University School of Law in New York City.

Stephanie Everett:

Hello, we’re so excited to have you here today. And today we’re going to tackle an issue that sometimes people get nervous talking about maybe, which is the idea of diversity, equity, and inclusion, and how we can better maybe approach these issues as business owners. So I would love for you to kick it off and tell us what is the state of today with DEI initiatives and how should we be thinking about this?

Tanya Hernandez:

Well, I will concede that these are scary times just because there’s just so much legal uncertainty about everything everywhere. But that being said, one of the best places to start is to first have an understanding of what do I mean? What do you mean? What do other people mean when they talk about DEI? Because it’s become sort of this very charged label that is sort of in some respects now somewhat incoherent from all of the demonization of what it started out to be. So that being said, when I think about DEI, diversity, equity, inclusion, it is about fairness

And in many respects, liability prevention problems as well. I mean, when we think about the origins before we had a DEI label, what was DEI? It existed before a label got put onto it and it was sort of enforcement under Title VII of the Civil Rights Act of 1964 enforcements court decrees in which a court would say, look, this employer has been found liable for being discriminatory against its employees or its applicants, and now we will make the plaintiff whole in however many ways, whether that be compensation, whether that be reinstatement, et cetera. And also because it’s not just about this one individual person, it’s about the workplace as a whole. We want to see diversity, well, they didn’t call it diversity training, but they called it equality awareness, a civil rights awareness. But very much what we think of now as DEI had these early origins, when we think about it from that perspective, that need still exists.

That is to say, if we think about the obligations under Title VII or for those who are landlords under Title A of the Fair Housing Act, FDA own public accommodations as well under title two. So the entire structure of anti-discrimination law as it still exists, requires an affirmative insulation to the best of that. Let’s stick to the workplace that employer’s ability to insulate it from harassment, both sexual and racial, to insulate it from biases acted out by their own supervisors and coworkers and what have you. So all of that is still there. And we’ve also sort of evolved quite a bit since 1964. And so I think many of us in the workplace and certainly in small law firms and the care about that, our employees feel like it’s a fair place and that decisions are being made based on merit and not any other kind of abstract characteristic that no one can control and that no one should as far as one’s gender, one’s color, et cetera. And so when we think about the state of law today, yes, there’s lots of noise out there about sort of DEI being taboo, but that’s a particular characterization of it. If you think about it as just simply the origins from 1964 and really civil rights movements from many, many, many years before that about fairness and equity in the workplace and in other public spaces in which anti-discrimination law operates, that is still good law

As well as should be

Stephanie Everett:

Good. And I think sometimes we might think that these issues really are big firm issues or big business issues, and a lot of our listeners have small firms and they might be thinking, does this really apply to me? I think the answer is, I mean, just like you were just saying, the underlying issues that we’re trying to solve for absolutely should apply, should be thought about by every business owner. We want to make sure that our people feel that they’re included and that they’re being treated fairly. I mean, I feel like that’s just a normal, not even legal, it’s just basic human

Tanya Hernandez:

Rights. Well, and what’s so interesting too, about thinking about this from the perspective of a small law firm or a small workplace is that the issues become even that much more fraught, meaning I think back to being a LawClerk in the chambers with the judge and another co clerk and the secretary, that’s it. That was the workplace for the most part. And that meant that any kind of discord, if there was any sort of sense of unfairness, inequity, it was magnified because it’s just a few people. And so if you want from a self-interested perspective as an employer to have a smoothly operating productive workplace, you only the best from the few people that you do have employees, whether it be a paralegal, a secretary, and an associate. You need to even be more attentive to not, how should I say, brushing off issues as though they were simply about a personality conflict or just some sort of misunderstanding or cultural misunderstanding. I mean, all those things can be present, but inequality can also be present as well. And so it’s important to have how we say guardrails for both detecting it and addressing it so that our employees don’t feel like the only recourse is to file a lawsuit. Yeah,

Stephanie Everett:

Man, I hope I ask this next question somewhat artfully, but here it goes. Sometimes when we’re small, so it’s a small group of people we might disguise is maybe, I don’t know, or think, well, I’m hiring for a cultural fit. And especially if we don’t have a large team, it’s very easy for the people that we bring on to appear like us and be similar to us because that’s what we’re naturally attracted to maybe, or we don’t even unconsciously, maybe we don’t even realize that. I’m just kind of curious, how do we start talking about that and maybe what should we change? What should we be thinking about differently or maybe more intentionally to make sure that we’re not unknowingly just hiring a small team of people that are very similar?

Tanya Hernandez:

Well, here’s where I think it’s important to keep in mind that while this may feel just a very intuitive kind of topic, that good people should have good attitudes and all goodness will follow from that, that it’s important to remember that this is a area of scholarly inquiry and research, meaning that there’s research about this that can be very helpful. So let me give you an example that can help in many respects intervene into the reliance on, oh, this person seems like someone I already know, or they remind me of my college roommate, or so on and so forth, rather than just operating within our known networks and that comfort level, what we cheat ourselves of as far as the talent pool, and also how we may disadvantage ourselves with that reliance. So lemme give you an example that kind of brings that to light in research of investment banks, a place that relies upon numbers.

There was a researcher who got permission to sit in on interviews and watch the hiring process and just so to be a little fly on the wall. And what this researcher observed time and time again is that when it was a male, typically white male applicant, the math test that would be administered was sometimes not administered at all. It was viewed as sort of, oh, we don’t need Joe to take this test. We know he’s a good guy, and if it was administered, if Joe did not do so well, there was always an explanation for it. Oh, he had a bad day. Oh, he was distracted. Oh, there was noise. It was always not about him. It was about some external circumstances. In contrast, when women of colors and men of color were applicants, those math tests were religiously administered and any slight deviation on whatever was a perfect score was taken as sort of an indictment on the potential of that applicant.

So what does this mean? This means that the hiring process was potentially be letting in lots of folks who really weren’t qualified. I mean, yes, you might have a comfort, but you don’t know if that person really good at two and two, and you were also denying yourself the extraordinary potential of other people who while maybe it would take an extra second or two to get to know them and understand where they were coming from, they would bring this wealth of skill that you’re depriving yourself of. If you, let me give you one more example. I like that one because it’s the math one, but there’s another one that is centered in law firms, not small firms, more like mid-size firms, but I think the example still bears out. And in this one, it was an experiment. So this wasn’t like a researcher watching real life what was happening.

This was what was ported to be a writing sample test. And so law firm partners were of all different backgrounds were sent what they told was a sample writing sample of a third year associate, and they asked, could you give us tips on was this good or bad or what have you? Okay. And along with that, they were given a photo and a little bio. The bio was same for everyone. It was a man who’d graduated from NYU law school who had certain kinds of skills, et cetera, that the bio was always the same. But what was changed for one half of the group was the photo one had a black Tom Meyer, one had a white Tom Meyer, but it was always Tom Meyer who graduated from NYU. Okay? And what was discovered that systematically the white to and oh, I should also point out this writing sample purposely was not perfect.

It was purposely with some mistakes because what person doesn’t have mistakes of any sort? Okay? And what was uncovered is that the white Tom Meyer consistently had a much higher score on average for the very same writing sample than the black Tom Meyer. On top of that, the black Tom Meyer was asked for formatting changes and an extraordinary rate that wasn’t part of the test where the law firm partners were just tell us what you think about the writing, not whether the right size font was being utilized or the margins were pretty or what have you. But they felt, I don’t know, inspired to scrutinize that Blacktown Meyer. Okay? Let’s say there were font errors, let’s say that there were margin errors. These very same things though weren’t asked of Tom Meyer, the white one. And then on top of that, there were spontaneous remarks that were written on the writing samples by partners such as like, but I can’t believe he even got to NYU.

This person is so clearly unqualified. Okay, now let’s circle back to the message, right? It’s why bring up this whole example. What that shows is that if those who wanted to go hire Tom Meyer, the white one, and had a practice of doing so that this experiment uncovered meant that you were hiring a person or persons who would not find mistakes and where the law firm’s presumption that they were so well qualified would allow mistakes to go through. Imagine that brief being filed before the Supreme Court, but the sheer embarrassment before the firm. And so I think that the richness of this kind of research is what can help people rethink some of their reliance on just sort of default, it’s comfortable. Let me just do things the way I’ve always done it. Let me just hire based on gut. I have sort of faith in people’s common sense when they’re presented with very helpful evidence.

And I think this, and those are just two examples. There are many more that I could share with you, but they are sort of emblematic of the ways in which we human beings, we’re busy, we were distracted, we look for shortcuts. It’s completely understandable, but we also have the power to slow ourselves down. We also have the power to learn a little bit more. It didn’t take that much for me to explain this, and I have complete confidence that those who are listening completely understood what I was saying. So it’s not sort of deep rocket science that it needs to be utilized to sort of help get across the need and the perspective change that we can all engage in for making sure that our workplaces are liability protected and also just fear and productive places as any employer would want them to be.

Stephanie Everett:

Yeah. I want to ask you next about some tips and some practices we can put in place. But as you were speaking, it also reminded me of an example that we had in our community where a person we were coaching said, I was interviewing these applicants and this one just opened up. They were so casual, it just felt like we were friends, we hit it, all this connection idea. And luckily we had a black woman talking in the conversation who said, I would never feel comfortable in a first interview just being really casual. The history, the way that I was raised and taught is I need to show up and be professional. I need to be buttoned up. I need to rise to a different level in order to have a chance. Whereas this person was saying, I just want you to show up. Can’t you just be yourself and not be so professional?

That was a ding, and it was a real moment for me to just hear both those perspectives to be like, wow, as a white woman, I’ve never been taught that I need to show up in that way to get a job. That just is not part of my experience. And I’ve noticed that now even in hiring that we’ve done on our team. And I try to keep that framework in mind that there could be things that I don’t even appreciate this person showing up in a way that they think is right. I mean, there’s a right, but you know what I’m trying to say. I don’t know. Maybe that’s just a different way of what you were trying to show us. So how do we move past that and start thinking about these decisions differently, I guess? Well,

Tanya Hernandez:

When it’s a huge enterprise, a very large law firm, a very large corporation, what they have is the luxury in some respects, to have inventories being taken. So meaning because it’s so large, it can be anonymized, you can have surveys done, you can have a monitoring of what your patterns are,

How many people applied, what were their backgrounds, so to see if even unbeknownst to you, there are ways in which there are problematic patterns happening that may be the basis or have been based on, I should say, reliance on stereotypes that really don’t do justice to the productivity of the enterprise of the law firm. Now, a small workplace on a solo practice, really it doesn’t have that kind of luxury, but it doesn’t mean that some of the same kind of guardrails can’t be adapted for that smaller size. Meaning when you think about inventory, what is an inventory? It’s just a way of you checking in and asking some questions, and that can be done on a monthly basis sort of looking at what kind of decisions have been made, but it can also be done on the spot. How does on the spot happen here?

I think of a family court judge who is known for keeping a little post-it, if you will, right on the bench. And what she has it there for is a little checklist of questions that she asks herself because in family court, very sort of weighty decisions are being made about people’s ability to retain custody, to have visitation. And so she asked herself, would I have made the same decision if this family were of a different race than the race that showed up here? But I have made a different decision if it was of a different gender, the person who, the parent that’s being alleged to have been neglectful, meaning just sit back for a moment without a concern about being indicted as a racist, a sexist. That’s not what the questioning is about. The question’s just about you stop and you ask yourself, look, I’ve got to move fast. There’s lots of stuff happening. Let me pause here for a second. Let me just ask a couple of questions. Let me flip it to test it. And that will sort of provide a way in which even in a small enterprise, you’re providing some sort of guardrails and an inventory process that can show what needs more attention. Love that.

Stephanie Everett:

I think even outside the hiring context, a lot of our small firm owners come to us and they want to have a strong culture. There’s this concept in the team culture, but I’m curious, how do race and equity fit into that question or how should they maybe be thinking about that idea of building culture differently in light of some of these topics?

Tanya Hernandez:

If what is envisioned by a good workplace culture is, oh, everybody plays on the softball game, or everybody joins in to do some kind of volunteer service on a particular day, that’s where we need to pause and ask some more questions, right? Meaning it’s well intentioned. There’s nothing wrong with wanting to build a could team spirit, especially in close quarters. But the means by which we do that can itself disrupt the building of a good culture. So if it were, for instance, oh, let’s all go after work to bowl, I love bowling. But if you asked me to go bowling on a weeknight in the years in which I was raising my young children, it’s not that I don’t want to be a team player. I don’t have that luxury and I don’t have that kind of familial infrastructure. I don’t have a wife who’s going to 1950s at home leave it to Beaver, Jim Cleaver wife to take care of business for me. And so even though it’s unintentional, the not checking in to ask, would this be at all a challenge for any of the members of the team that I want to do this team building exercise with? And that can be a way that we can slowly start to have more inclusive workplaces without it feeling sort of out of reach and so difficult to achieve.

Stephanie Everett:

Yeah. What would you say to a well-meaning law firm owner who says, I want to be more inclusive and I just don’t know where to start?

Tanya Hernandez:

Well, I think that what is always so helpful is that our young people are leading the way, meaning that remaining teachable is a very important thing. Now, maybe I can say that from the convenience of sitting in a law school in which I march into that classroom, those students are teaching me things every single day. I try to go in with my wealth of knowledge and decades of experience, but that doesn’t mean that I can’t benefit from looking at things in a brand new light. And so these young people, they’re writing about their experiences in the workplace. There are blogs everywhere. I mean, if you don’t want to go into the empirical research of scholars or what have you, there’s sort of low hanging fruit as far as what does it mean to be truly welcoming and inclusive? Our young people in the workplace are letting us know,

Stephanie Everett:

Oh, well, that’s a good question. So I guess maybe it’s so silly, but is it okay to ask them and how can we approach that conversation? Because I think, and so what I’m bringing to for me to asking this is, especially in recent years, I don’t know. There’s definitely a narrative that for me as a white woman, I need to go do my own research and I need to figure this out. It’s not fair to ask people to ask my black colleague to teach me or to explain it to me and expect them to have it all figured out that I need to take my own steps. So that’s the nature of my question is I think sometimes, as you can tell, even by me asking you these questions, I get tripped up in my own head, and I often am like, ah, is this the right approach? Am I asking the right questions? I think my team knows that I am coming from a place of curiosity and really wanting to understand and know better, and they know, but still, I get worried about am I doing all the things I should be doing?

Tanya Hernandez:

Well, that’s why I sort of pointed out this idea of the blog posts that young workers are posting. I know it sounds sort of lowbrow, but the social media, I learned quite a bit from TikTok because it’s people just expressing what their actual perspectives are. That is very illuminating. And so the background research that we do can be, yes, having book clubs and reading, but they can also be sort of tapping into how are people sort of, let’s put it this way, testifying. You could think about it as a court way or you can think about it as a church way that they’re testifying about what their experiences are without it having to be a burden that’s placed on any of our workers who may come from those group based that are experiencing the marginalization in our society. But checking in with them about what do you think about this new policy that we’re proposing that’s not about trying to overburden? That’s just about checking in about, do you think there’s something I’m missing here? All of us can miss things. I miss things all the time. And so just asking the quick hi, I thought that I saw going bowling was going to be sort of this great idea. Do you think that makes sense? Because I thought I detected somebody raising their eyebrows at me and I didn’t know what it meant, so just wanted it written by you. What do you think about that? Oh,

Hernandez, you miss the way in which our young parents don’t have that

Stephanie Everett:

Luxury. Yeah. I love that framing of burden too, because engaging in conversation, asking for people’s input and thoughts and checks on how we are thinking about it versus putting the burden on them that they’re the ones who have to educate us and teach us or come up with this, that is helping me. Alright, well, anything else from your perspective that you think maybe we should be thinking about and that we’re not?

Tanya Hernandez:

Well, I mean, one thing I want to just make very clear is that because there’ve been so much noise in the news media and misinformation that I just thought, lemme just be absolutely clear. The Supreme Court decision in the SFFA versus Harvard case, like the big affirmative action case in 2023, it did not outlaw DEI. Yes, there’s a way in which that sort of confluence of ideas has been sort of mushed together. It did not. It only spoke to the issue of university admission policies. It only spoke to the ways in which the admissions practices could take place. It did not say you couldn’t think about race at all. In point of fact, the decision directly speaks to the majority opinion about the benefit of allowing students and their essays to talk about what their backgrounds, to extent that they think it’s relevant to their flourishing. And so I would like to make sure I left the room with any disabuse them of confusion that unfortunately is being propagated in our public discourse.

Stephanie Everett:

Yeah, I think that’s super important and helpful because, and maybe a related issue that I would love your thoughts on as we kind of start to close out is I think businesses are worried about they wanted to be bold. I know some firms out there that are like, I want to be very clear on who we are and how we are going to approach our teams and our clients and build our culture and a fear of pushback maybe is the right word, or being called political because we’re seeing that with very large companies. Obviously there’s a backlash coming out for on both sides, no matter which way a company comes out. We’re seeing boycotts of things of, well, I’m going to not shop there because they are supporting DEI or because they’re not supporting DEI, and I think some people are almost paralyzed. I don’t know which way to go. And I wonder if you have advice or thoughts for this.

Tanya Hernandez:

I do. I’m thinking about this a bit myself, and I think the locust of the problem is that when it’s about DEI, it’s a performance. So meaning a big banner is held out, mountains are made. When I think about the big corporations, it’s very much part of their marketing and symbolism. And so then depending on where their demographic of consumer operates from, they may feel a kind of backlash, which that every direction they go in. But I think we need to take off the performance from just doing the work, doing the work of making sure we’re making non-discriminatory decisions as employers, making sure that we’re actually getting the most best talent that there is out there and not depriving ourselves because of our own default settings about being able to bring in that wonderful talent and that they are all situated to feel like they can be their best selves and be most productive doing that.

You don’t have to call DEI, you don’t have to make a big announcement about it doing of the work shows, and it attracts people. So I don’t think that having a sort of a DEI mission, I mean, it sounds lovely because there’s a bit of a try to signal to a new talent. The welcome sign is out here, but for a very long time, those equal opportunity employer labels were put on lots of different corporations, and it didn’t really mean anything. We all knew that, but what was effective hearing from someone else that they were treated fairly, that it was a good place to work, et cetera. So doing the work, we don’t have to be afraid. Love that. Making the big show and performance, let’s leave that behind us. Yeah,

Stephanie Everett:

I know. I love that. I love the idea of doing the work, and there’s a lot of work to be done. We don’t have this figured out, but I love getting our hands dirty and engaging in it. That’s where we need to all be. I think. So I just appreciate you coming on and having this conversation with me today and giving us some ideas and thoughts of how we can approach this work. So thank you so much for your time and for your knowledge and insight. It’s been great.

Tanya Hernandez:

Thank you so much for having me. It was lovely chatting with you.