White lawyers, a word of caution: Your colleagues of color are sick of having to constantly educate you on racial issues and the nuances of diversity, equity and inclusion.
Lawyers of color: We know you are exhausted, but there are still benefits — both institutional and personal — in continuing to play the game.
These were the two main takeaways during a panel discussion of law firm partners Thursday afternoon at the Texas Minority Counsel Program’s 31st annual conference in Houston.
The panel, moderated by Jackson Walker partner Christopher Mugica, provided tips from Norton Rose Fulbright partner Jamila Mensah, Carter Arnett partner Stacey Cho Hernandez and Stuart PC partner Larry Stuart, on how to overcome both diagnoses of fatigue.
A chunk of conference-goers raised their hands when Stuart asked the crowd if anyone had any teenagers at home who hate being told what to do.
“That is white men,” he said.
As a labor and employment lawyer and an alumnus of Big Law, Stuart said he frequently talks to white male decision-makers at companies, and many often complain about the time and resources they are being required to spend on DEI.
“The pushback can be, ‘But it doesn’t apply to me. I’m not racist,’” he said. “[It’s often because] they don’t understand the history.”
For example, he said, “many employers I talk to don’t know about redlining.”
Stuart recommended The Color of Law by Richard Rothstein as a roadmap for shedding light on the history of U.S. housing policies that exacerbated racism in America.
Though he admitted Rothstein is quite liberal, “when you take the facts — not the advocacy — from the book and talk to white men in a non-demanding way, they listen,” he said. “[It helps] when you frame it as, ‘I just learned this … [and] I had no idea.’”
For lawyers of color, Mensah said, fatigue is especially layered. When ethnic minorities are consistently asked to raise their hand to lead nonbillable DEI-related work, some question why they are being asked to solve a fundamental problem they never created. There’s also the fatigue of stagnated progress in light of a tough legal and political climate.
If she could sum up the meaning of diversity fatigue, Mensah said, it would be, “Please don’t ask us to do one more thing.”
“But the counterargument is, ‘Until the problem is resolved and people are educated enough, I would like my voice to be in the room,’” she said.
Mensah co-chairs Norton Rose Fulbright’s racial equity council, which the firm launched in 2020 in response to the murder of George Floyd. Since its debut, the council has developed and implemented numerous initiatives to help recruit, retain and promote the firm’s Black lawyers and nonlawyer personnel.
Looking at the discussions that the 2020 racial justice movement sparked, Mensah said, “what was unexpected for me and our firm was the willingness of people to just say what it [racism] is.”
“I heard stories from friends I’ve never heard involving challenges they’ve faced for being Black or brown,” Mensah said. “The fatigue of not talking about it [for so long] and pretending it didn’t happen is so exhausting.”
In terms of finding support, there’s power in similarly situated attorneys sharing their experiences with one another — such as other attendees at the TMCP conference, Mensah added. She encourages lawyers of color to seek out friends who they can “download and uplift” with.
It’s also crucial to have buy-in from top leadership for skeptics to embrace their firm’s DEI work, Mensah added.
“One way we’ve made a lot of traction on DEI initiatives is having intentional messaging come from our managing partner: ‘This is what we’re doing. This is how it’s going to go,’” she said. “Having it come from the horse’s mouth in the same way that firm finances come from the horse’s mouth has been a game-changer.”
Mensah also encourages lawyers of color to participate in DEI efforts and discussions because “it’s OK to be self-interested while advancing your organization.”
“For me… I know that I’m advancing my career at the same time, and I have no apologies about that,” she said.
To that point, Mugica urged lawyers in management positions to recognize their colleagues’ DEI efforts because “they’re just as important as business development.”
Hernandez said there’s also the fatigue created by new laws, such as the new legislation in Texas that bans DEI offices at state universities.
“Some people are just tired of talking about it or are frustrated with the results and new laws,” she said.
There’s also the prolonged chatter around this summer’s SFFA v. Harvard U.S. Supreme Court decision that banned affirmative action, the lawsuits and demand letters activist Edward Blum has lodged against law firms and others in the professional services industry, and the speculation of whether the Harvard decision will soon affect race-based affirmative action in the private sector.
Hernandez thinks that the narrative the media has pushed about the existence of DEI programs in the private sector being threatened is exaggerated for a few reasons: 1) the Harvard decision only applies to higher education, which is governed under Title VI (an entirely different statute than what governs private businesses), 2) the head of the Equal Employment Opportunity Commission issued a statement after the decision advising employers across the country that their DEI programs are still lawful, and 3) when the Supreme Court justices made their assessment in the Harvard case, they used a strict scrutiny test.
“It’s too soon for the press to argue that employers are next. It’s an exaggeration,” she said. “[That said], there is something to the nation’s highest court.”
On the other hand, Mensah said, “we can’t ignore the fact that some people are using [the Harvard decision] deliberately or accidentally to stop using these programs.”