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Spring 2013
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From the ChairGretchen Bellamy

Time has flown by, my friends! I cannot believe this is my last “Welcome” as diversity officer. I have learned many things from my tenure and from the Section members. I have seen us, as a member-driven organization, grow in terms of understanding diversity and inclusion – but we still have growing to do.

I urge all of you to reflect inwardly as you plan standalone programs, webinars, and seasonal programs. Ask yourself if you are simply asking your “good buddy” to be part of your program or if you are committed to Goal III of the ABA and are making a good faith effort to ensure you have created a program filled with diverse speakers.

When you are promoting the Section (and ABA-at-large), be sure you are really considering who you are asking to join. Go out of your way to invite and help guide a new member and show her or him how to get involved. Keep in touch with that person so that they know they are wanted and so they will stay. We need to strongly consider what we want our membership to look like, not only today, but in the long-run.

We had an exciting program on Section 342 of Dodd Frank at the Spring Meeting. Were you there? It was an exciting panel where diverse speakers discussed the business case for diversity in global financial markets. It wasn’t something to be missed!

You want your law firm or general counsel’s office to be diverse? Don’t miss out on an article written by Don Dowling, a partner at White & Case, who has given us a wonderful article on cross-border diversity initiatives for recruiting and retention. The future of your firm or practice depends on it. You can also catch up on what the Chicago Bar Association is doing from its president, Aurora Abella Austriaco. Great to see a local bar association recognizing the global nature of the legal profession. Make sure you read through the entire newsletter so you can learn more about Adejoké Babington-Ashaye, co-chair of the Africa Committee and counsel at the World Bank Administrative Tribunal (you know you need to know her!).

Sincerely, it has been a great pleasure serving you over the last two years. I wish my successor all the best.

With warm regards,
Gretchen C. Bellamy

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Section 342 of Dodd-Frank: The Business Case for Diversity in Global Financial Markets and Beyond?

A wonderful panel, led by Section member and diversity committee member, Cheryl Nichols, was held on Tuesday, April 23rd at the Spring Meeting in Washington DC. Below you will find a wonderful overview of the program.

Overview:
Today's global marketplace makes diversity even more critical to business success. How do you provide services to, for example, India and China, competing against law firms that are native to these countries, without a wide range of insights and experiences? Appealing to a minority demographic requires an understanding and a representation of the nuances of that culture. This program is designed to further the ABA's diversity mandate. The panel's discussion will address: (1) the current state of diversity and inclusion in the legal provision; (2) the business case for diversity; (3) effective strategies and best practices for meaningful increases in minorities and women in the legal provision, including senior levels of law firms, such as partners; and (4) the impact of Section 342 of the Dodd- Frank Act on increased diversity in the law firms serving global financial markets.

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Anglo-American Symposium on Diversity and Inclusion in the Legal Profession

Presented by the Institute for Inclusion in the Legal Profession with the Law Society of England and Wales and the Bar Council of England and Wales
3:00 PM – 8:00 PM

24 July 2013 – Birmingham, UK at DLA Piper, Victoria Square House
25 July 2013 – London, UK at Royal Bank of Scotland, 280 Bishopsgate

For more information: www.TheIILP.com

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Cross-Border Diversity Initiatives for Recruiting and Retention

By Donald C. Dowling, Jr.
Partner, White & Case LLP
ddowling@whitecase.com
© 2012 by Donald C. Dowling, Jr.

Gretchen BellamyEqual employment opportunity and diversity play a huge role in domestic American human resources administration and in U.S. employment law compliance―surely a bigger role than in any other country, particularly outside the common law world.  So it might seem that, when it comes to propagating workplace diversity globally, American multinationals enjoy a clear head start.  But very-different demographics abroad make this head start less advantageous than it may at first appear. Indeed, in some contexts overseas, too much experience with U.S. diversity initiatives might even be a drawback.

How, specifically, does a multinational drive EEO compliance and foster workplace diversity across jurisdictions?  U.S. EEO and diversity tools were originally honed for the atypical, rarified environment of U.S. discrimination, harassment and diversity law, and for the unique demographics of the United States.   So they do not always work well abroad, at least not without significant retooling.  This is particularly true as to those American diversity tools and programs engineered to increase demographic representation in the workplace through recruiting and retention (as opposed to softer diversity training programs meant to enhance respect and tolerance among co-workers already in a workforce).

Any diversity recruiting/retention initiative will fail if the employer cannot measure its success. And no employer can measure the success of a diversity program without consensus around the meaning of the core term “diversity.”  Employers promoting diversity across borders must therefore begin by confronting a tough but central question: What do we mean when we say we want “diversity”? Very-different demographics and “core diversity dimensions” overseas mean that the answer will not be the same abroad, as compared to domestically within the U.S.  

The U.S. understanding of “diversity.”  In addressing “diversity,” the U.S. Supreme Court has adopted the increasingly-popular “big tent” view, saying that “[m]ajor American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas and viewpoints.” (Grotter v. Bolliner, 539 US 306, 330 (2003).  This all-encompassing approach sees “diversity” as far more than the three narrow but well-defined “diversity dimensions” that U.S. government statisticians track via America’s mandatory employer-diversity-reporting form, the EE0-1: gender, “Hispanic or Latino” ethnicity, and “race” defined as “White,” “Black or African American,” “Asian,” “American Indian or Alaskan Native” or “Native Hawaiian or Other Pacific Islander.” 

U.S. diversity experts these days expand their efforts beyond these three EEO-1 categories of gender, Hispanic/Latino ethnicity and race.  Modern diversity experts, along with the Supreme Court, speak broadly (if vaguely) of “diversity of backgrounds,” “diversity of opinions” and “diversity of experiences.”  Diversity professionals also cultivate diversity among age groups, sexual orientations, the “differently abled,” and other groups, legally-protected and non-legally-protected alike.  To a modern U.S. diversity expert, confining a corporate diversity initiative just to the EEO-1 categories would be far too narrow.

That said, though, the fact remains that domestically within the U.S. the sine qua non of a “diverse” workforce actually is rooted in our three “old school” U.S. EEO-1 categories.  To Americans, those three “diversity dimensions” stand alone in their own tier, with all other categories less important.  After all, no American would consider a workplace of all white, non-Hispanic men “diverse”—even if those Anglo white guys came from various cities, were alumni of various schools, voted for various political parties, cheered for various sports teams and were of various religions, ages, sexual orientations, and physical abilities.  On the other hand, we would all have to concede that a workforce is indeed “diverse” if made up of half men/half women and boasting big percentages of Hispanics, blacks, Pacific Islanders, Asians and Native Americans―even if it somehow turned out that this gender and race balanced workforce included only able-bodied heterosexual Ohio-born Democrat Catholics over age 40.

  • Among our three EEO-1 “diversity dimensions” (gender, Hispanic ethnicity, race), one category―race―stands above the others. According to the Yale Journal of International Law (vol. 35, p. 116 (2010)), “U.S. judges, activists and academics have theorized extensively about how the struggle for African Americans’ civil rights shapes U.S. law prohibiting discrimination against other groups.” 

The international understanding of “diversity.” For years now the importance of “diversity” has been growing outside the U.S. According to a report from the Conference Board (Executive Action Series #175), “demographic changes in Europe, combined with…regulations, are…pressur[ing European] companies to increase the diversity of their workforces.”  A study by the Lee Hecht Harrison firm once found that two-thirds of employers worldwide see employer diversity programs as key retention tools.  Some countries now actually mandate specific diversity initiatives: South Africa requires workplace diversity plans, for example, and Brazil and Germany require affirmative action for the disabled.  European jurisdictions are requiring gender equity on corporate boards of directors.  India now imposes some caste diversity rules in the public sector.

So in today’s diverse, multi-cultural world markets, all multinationals, regardless of where headquartered, should be thinking about how to foster inclusion and equality of employment opportunity within workforces worldwide, and how to recruit and retain diverse workforces. 

But in propagating a diversity program abroad we come right back to our definitional question of metrics: What do we mean by “diversity”?  Like plugs on our American electrical appliances, our U.S. EEO-1 metrics of gender, Hispanic ethnicity and race just will not fit overseas.  Indeed, our American understanding of race and ethnicity is so uniquely our own that even the U.S. Census struggles―recent immigrants cannot interpret American census forms because peoples from other cultures do not “get” how Americans categorize ourselves. According to the New York Times (January 22, 2010):

The pattern of race reporting [to the U.S. Census] for foreign-born Americans is markedly different than for native-born Americans.… For example…a majority born in the Dominican Republic and El Salvador, who are newer immigrants, described themselves as neither black nor white.… Among all who identified themselves as Asian-Americans, which is often understood to mean born [in the U.S.], 67 percent were, in fact, foreign born.… [According to] Elizabeth M. Grieco, Chief of the Census Bureau’s immigration statistics staff,… “it’s a part of not knowing where they fit into how we define race in the United States.”

This disconnect between what Elizabeth Grieco calls “how we define race in the United States” and how other countries define race (and ethnicity) explains why workforce demographic diversity programs hatched from U.S. EEO-1 metrics are bound to fail if transplanted overseas.  Consider:

  • The “Hispanic/Latino” EEO-1 ethnicity category is unique to the U.S., is misunderstood outside the U.S., and is meaningless where there are virtually no Hispanics/Latinos—countries from Albania to Zimbabwe—as well as where there are virtually nothing but Hispanics/Latinos—Spanish-speaking Latin America, Spain, Equatorial Guinea.
  • Concepts of race differ abroad. In England, “Asian” means Indian/Pakistani but rarely includes peoples of the Far East (who are called “Orientals”). South Africa’s diversity-promoting EEA-2 form distinguishes “Whites,” “Indians” and “Africans” from “Coloureds”—a mixed-blood category that looks offensive to Americans.  At the same time, of course, the U.S. category “African-American” looks offensive in the many countries of the world with big populations of “Africans” who are not “American.”
  • Labor-pool demographics make racial diversity statistically impossible in much of the world.  In 2013 the CIA World Factbook (www.cia.gov) reported that Japan is 98.5% Japanese and over 99.4% Asian. Korea is 100% Korean (“except for about 20,000 Chinese”). Finland is 99 percent Finnish and Swedish. Paraguay is 95% “mestizo” and Mali is well over 95% black. Even the increasingly-heterogeneous UK remains 92.1 percent white.
  • Our three American EEO-1 categories are too coarse to account for the granular demographic distinctions necessary abroad.  In India caste status is legally-protected—but in EEO-1 terms, all Indians are “Asian.” In Africa, tribal ancestry is critical—but in EEO-1 terms, all tribal Africans are “black.” In Spain, Basques and Catalans speak their own languages and promote separatism—but in EEO-1 terms, all Spaniards, Basques and Catalans are “Hispanic/Latino whites.” In Canada, French Canadians are culturally distinct—but in EEO-1 terms are, like most Canadians, “non-Hispanic/Latino whites.”
  • Even workplace gender diversity can be impossible abroad. In Saudi Arabia, just five percent of the workforce is female and local law requires segregating women workers from men.

According to HR Magazine (Nov. 2003), U.S. “HR directors are finding that one-size-fits-all [diversity] programs” launched overseas “will not work and might not even be understood.”  Andrés Tapia, serving as Chief Diversity Officer at Hewitt Associates (now AON Hewitt), has said “we’re beginning to see an increasingly resentful backlash against the American version of diversity abroad.” Outside the U.S., the complaint Tapia heard most often was that “this diversity thing is an American thing.” This tension with cross-border diversity initiatives forces U.S. multinationals to confront what “diversity” means in the cross-border context.

Three viable cross-border “diversity” initiatives. Because U.S. diversity metrics and the American understanding of “diversity” do not travel well, any U.S.-headquartered multinational intending to launch, across regional or worldwide workforces, a diversity initiative focused on recruiting and retention should resist the urge to transplant its U.S. approach.  Retool an American diversity initiative by using internationally-appropriate metrics and a global understanding of “diversity.”  There are at least three alternate designs a multinational might use in transforming a made-in-the-U.S.A. diversity initiative into a viable international one: (1) cross-cultural understanding (2) gender inclusion and (3) local racial/ethnic diversity.

  • Cross-cultural understanding. International project teams with members from different countries can run into misunderstandings because of deep-rooted cultural differences. Even within a region as well-integrated as Western Europe, work styles differ and underlying assumptions and attitudes diverge across a team of, say, Britons, French, Germans and Italians. Cross-cultural understanding sessions can address these problems with training focused on attitudes.  But these soft training programs are so distinct from hard demographic “diversity” initiatives focused on recruiting and retention metrics that using the “diversity” label here is perhaps disingenuous.  One human resources manager, Suzanne Bell of Toyota Financial Services, has suggested keeping the distinction clear by labeling the training “Global Cultural Competence” or “Global Cultural Awareness” programs—eschew the word “diversity” entirely.
  • Gender inclusion. Homogeneous racial demographics in many overseas markets may block efforts at racial diversity, but gender equity is good everywhere (except in Saudi Arabia, where in many respects it remains illegal). Women are underrepresented, especially in leadership roles, in so many overseas workforces.  Gender inclusion is becoming a hot issue in many jurisdictions such as in Europe, which is requiring gender balance on corporate boards of directors. Some American multinationals therefore focus their outside-U.S. diversity efforts on promoting gender inclusion, reserving race and ethnicity for their domestic U.S. diversity programs. According to HR Magazine (Nov. 2003), as far back as the early 2000s Chubb, DuPont, Eastman Kodak, Ford and J.P. Morgan were all testing gender diversity programs in Latin America.
  • Local racial/ethnic diversity. Bold multinationals that take international workplace diversity seriously enough to confront the irrelevance of our three U.S. EEO-1 categories abroad might promote racial/ethnic inclusion by tailoring overseas diversity metrics to the different “core diversity dimensions” of their overseas workforces.  It makes absolutely no sense to track the “Hispanics” and “African Americans” within a workplace in, say, Russia, India, Chile or South Africa.  Ask instead: Which “diversity dimensions’ and demographic categorizations are locally appropriate in our overseas locations?  Then implement meaningful demographic benchmarking metrics on a localized basis. Does your Mexico City executive suite reflect Mexico’s Indian/Mestizo majority? Is your Brussels facility equally inclusive of both Flemish and Walloons? Does your Zurich branch welcome Switzerland’s French and Italian-speaking minorities?  Do your Tokyo office policies fight Japan’s entrenched discrimination against ethnic Koreans, Ainus and Ryukyuans?  Do local taboos—and data privacy laws—prevent you from learning the status quo, taking action and measuring success?  Going beyond racial/ethnic categories, how can a global diversity program cultivate diversity among age groups, sexual orientations and disabilities?  Bold cross-border diversity initiatives of this sort remain rare. But they may be the next frontier.

“Core diversity dimensions” and the very definition of what it means to be “diverse” differ widely from one country to the next across our increasingly homogeneous “global workforce.”  Any multinational launching cross-jurisdictional work rules, international HR policies, global code of conduct provisions or other border-crossing initiatives that champion diversity in overseas recruiting and retention should modify existing U.S. domestic diversity policies and offerings―or even completely start over abroad.

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Chicago Bar Association, Going GlobalGretchen Bellamy

By Aurora Abella Austriaco, President, Chicago Bar Association

The need for diversity is not just a local argument but spans the international markets. As Americans, we sometimes tend to think too much that we are the only game in town, but the reality of it is we need as much of the international markets as they do us.


L to R: Aurora Austriaco, President of the Chicago Bar Association; Pedro Yufera, President of the Barcelona Bar Association; and Sonia Gumpert Melgosa, President of the Madrid Bar Association
This holds true whatever industry you look at. As a matter of fact, this is especially important in the legal community. Long gone were the days when only large firms can represent international clients. Corporations have come to realize there is a compelling business argument for hiring a diverse team, including a diverse board, employees and a diverse legal team on the basis that their customers demand it. As a result,  corporations have demanded from law firms that their lawyers also reflect  this diversity.

As President of the Chicago Bar Association, one of the largest and oldest metropolitan bar associations with over 22,000 members, it is my mission to enhance the visibility, perception and value of lawyers in the community. As their clients are going global and lawyers will need to adapt sooner rather than later, the Chicago Bar has forged and developed relationships with lawyers and bar groups internationally. In 2011 I went with the CBA delegation to Tokyo for the World City Bar Leaders Conference to further develop the international outreach. In February of this year I went with a CBA delegation to Barcelona to speak at their International Trade Fair on Legal Profession on  “Doing Business in Chicago” and at the Barcelona Bar Association’s Festival of Lawyers on the “Social Role of Lawyers.”  As a result of that visit, the Chicago Bar Association signed a “Twinning Agreement” (the equivalent of a sister relationship) with Barcelona Bar  where both our bars and our membership could exchange resources and tap each other’s organizations for resources, etc.

These types of relationships are crucial as the practice of law has become global. As our clients venture into international markets for their business, we need to be able to continue representing them, and we can do that by forging relationships with lawyers in these jurisdictions.

I am sure many of you, as Presidents of your respective bar associations, find it necessary to ensure that your bar associations remain relevant to your members. Without it, bar associations will lose their membership. I would be so bold to say that in order to retain your membership, you have to remain “relevant” to your members and in this global and technology driven market, that’s not an option, but a mandate.

 

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Attorney Spotlight—Adejoké Babington-AshayeGretchen Bellamy

Section Member Adejoke Babington-Ashaye, Co-Chair of the Section’s Africa Committee and Counsel at the World Bank Administrative Tribunal is a rising Section leader and a strong supporter of the ABA’s goal of diversifying the legal profession.  Adejoke has given an exclusive interview to the Winter Edition of the Diversity Newsletter on her own legal path to success, the principles that have given her inspiration to pursue a career in public international law and the diversity initiatives that should be a priority in 2013.

Q. How long have you been a member of the ABA and the Section of International Law?

A. I have been a member of both the ABA and SIL since 2009.

Q. How has Section membership enhanced your career and professional development opportunities?

A. Being a member of the Section has exposed me to aspects of law which are different from my main area of specialization, and this has been very enriching. The Section and the ABA as a whole have been a great source of training and professional growth. I’m also learning about leadership daily.  As Co-Chair of the Africa Committee, it is a great honor to serve a membership of over 400.

Q. What inspired you to seek a legal career?

A. As a child I wanted to study law and practice as a lawyer but had one question: “what type of law?” That question was easily answered by the time I finished my undergraduate law degree in the United Kingdom. I was always motivated by a strong desire to fight injustice.  As I learned from Martin Luther King, even if it does not happen in my lifetime, I should still fight for what I believe in.  As an international lawyer concerned with issues of human rights, rule of law, development and state responsibility, I believe I can make an impact, regardless of how little.

Q. Who has most inspired you in your life?

A. My sources of inspiration are varied and many.  I have been blessed to have parents who always supported and motivated me to be the best I could be.  My siblings remind me that I am my own competition.  I have also had law professors, mentors, current and former supervisors, including H.E. Judge Abdulqawi Yusuf of the International Court of Justice (ICJ), who challenge me to think outside the box. 

Q. What professional accomplishment are you most proud of?

A. I have been very fortunate in my career thus far.  I’ve had the opportunity to work with an NGO on human rights in Africa actively campaigning for the entry into force of the Protocol on the Rights of Women in Africa.  I’ve also been lucky to work at the ICJ addressing various exciting aspects of public international law for the resolution of state-to-state disputes, and now at the World Bank Administrative Tribunal on critical issues of international civil service law.

I would say that the accomplishment I am most proud of had very little to do with me.   As an investigator at the International Criminal Court (ICC) I was extremely privileged to interview and meet with people from different walks of life.  Whether it was sitting cross-legged in a tent under the hot Chadian sun, or in an interview room in London, I was truly fortunate to meet with people willing to share their stories and life-experiences with me in the hope that their witness statements would bring them one step closer to justice.  I am proud to have been part of that process.

Q. What do you think should be the ABA and the Section of International Law’s priority in developing its Diversity Goals?

A. In addition to the excellent efforts currently underway, I would suggest prioritizing the establishment of a mentorship program for young minority lawyers and law students, and increasing networking opportunities across various fields of international law.  

Q. What advice would you give to young minority students in law school on having a successful legal career?

A. Think outside the box and don’t specialize too soon.  I have been involved in recruiting entry and mid-level candidates at international organizations such as the UN and ICC and observed that with a career such as that in international law, there is a tendency to specialize too early in a particular area of passion.  I would recommend taking as many classes on different aspects of international law as this would make you more marketable. Also, publish, publish, and publish.

Prior to joining the World Bank Adejoke was an Associate Legal Officer at the International Court of Justice (ICJ) and an investigator in the Office of the Prosecutor of the International Criminal Court (ICC). Her international legal background includes human rights policy research at the Carr Center for Human Rights Policy, Harvard Kennedy School of Government, campaigning for the Protocol on the Rights of Women in Africa and investigating human rights violations in Nigeria's Niger Delta region.

Adejoké holds a LLM in Public International Law from the London School of Economics and is a qualified Attorney in the State of New York.  In addition to her duties as Co-Chair of the Africa Committee Adejoke is also an editor on the Committee’s Year in Review publication.

If you would like to reach out to Adejoke about the Africa Committee or her role in public international law she can be reached at adejoke@gmail.com.

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Questions or comments?
E-mail us at
Sandra Yamate, Editorial Contact: sandra.yamate@theiilp.com
Gretchen Bellamy, Diversity Officer: gretchenbellamy@alumni.duke.edu
Angela Benson, Director of Membership: angela.benson@americanbar.org
or call 202-662-1000

American Bar Association, Section of International Law
740 15th Street, NW • Washington, DC 20005 • 202-662-1660
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