FROM THE EDITOR
A Nudge Toward Diversity

By Jennifer J. Ator

Major law firms, corporations, and even this bar association have placed a lot of emphasis during the last 15 years on including diversity. While the intent was good, it was only the beginning and probably a little naive. If there is ever going to be meaningful diversity in any business, profession, or association, a diversity culture must be created and nurtured.

So, say you, what is the difference between including diversity and creating a diversity culture? So, says me, a big difference.

A culture is the characteristic features of everyday existence shared by people in a place or time. It exists because it is an integrated pattern of behavior that is transmitted to succeeding generations.

Although there are some parts of the world with a single culture, the United States prides itself in having many cultures, cultures that are defined by religion, sexual orientation, ethnicity, race, class, and gender. American subcultures exist with pride, which explains the emphasis on including diversity. But including diversity used to mean the old-white-heterosexual man hires women, racial and ethnic minorities, persons with disabilities, and those with a different sexual orientation. That is not the best we can do.

The emphasis should not be on including diversity in hiring, it should be on creating a diversity culture. Until the culture—the behaviors that are passed on to future generations—changes, diversity will continue to be an effort, not a reality.

Admittedly, I am a child of the 1970s. I was not alive when children with Down syndrome were sent to state homes to be cared for, when Mildred Loving won the right to be married to someone of another race in 1967, or when the Stonewall Riots exposed the American people to a segment of the country’s population that many did not acknowledge.

Many in my generation, and even more in my children’s generation, are lucky and have a leg up on the idea of a diversity culture instead of simply including diversity. As best explained by Mildred Loving in a statement in support of same-sex marriage made on the 40th anniversary of Loving v. Virginia, “I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way. . . .”

These fears and prejudices have given way because we have started to transmit a different pattern of behavior to our succeeding generations. A friend and colleague of mine is a child of an Indian father and an Irish-American mother; she has never let her ethnicity stand in the way of her dreams and goals. And where 50 years ago people with disabilities were sheltered at home or in group homes, my generation is full of parents who are deaf, blind, paraplegic, and autistic.

My best friend and first love when I was in preschool was the child of two university professors, a white German woman and an African American man—he is now a successful lawyer in New York City. I am the child of a homosexual person, and it never occurred to me that having Easter dinner with ten men was anything but normal. I went to high school in a predominantly Jewish neighborhood, and my best friends and biggest high school crushes had very different religious traditions than I do.

Until I got to college and cultural mixing was discouraged (presumably, in hindsight, because of the tradition of the preservation of cultural identities), there was rarely a time in my life when diversity in some way, shape, or form was not the norm. The closest I ever came was when I was seven. When a classmate asked me what I wanted to be when I grew up, I said a judge. He told me that I could not be a judge because I was a girl—and that just made me mad. Sadly, I’ve heard similar statements too frequently since becoming a lawyer. In the last ten years alone, I had two very well respected old-white-male lawyers say very disturbing things to me. One told me that “you can be a good lawyer or a good mother, but not both,” so which was I going to be? The other asked me why I thought that a woman could generate business because in his experience it was not possible for women to do so.

I know now that even in my generation, I am the exception, not the rule. And not just among my fellow White-Anglo-Saxon-Protestant-thirtysomething-Daughters-of-the-American-Revolution legacies. I have met members of minority groups who were prejudiced toward members of other minority groups. In fact, a thirtysomething minority lawyer confided in me that he has never had a friend who was gay. It has become clear to me that prejudices are just as likely to be held by those people whom the major law firms, corporations, and bar associations are working to recruit to include diversity—minorities—as by the “old-white-heterosexual men” typically in charge of the recruiting.

It got me thinking: What can we do to create this diversity culture without losing the subculture identities that are so important? How do we forge a diversity culture where diversity is normal, expected, anticipated, and if absent, unusual? Is it even possible in light of the continued entrenching of subculture-based business groups and trade associations, especially in urban areas and at the national level? Can we change the dynamic whereby particular groups exert power for the benefit of their own subcultures, and instead move to a dynamic wherein various groups work for the common goal of empowering a broader diversity culture?

Interestingly, I found a suggestion in a book written by economics professors Richard H. Thaler and Cass R. Sunstein about encouraging good economic decision making. Nudge: Improving Decisions about Health, Wealth, and Happiness proposes the concept of “choice architecture” that gives people a nudge, guiding them toward choices that are better for themselves and society—they call it libertarian paternalism.

The business world has been doing this to law firms for some time. Businesses are committed to diversity, so they insist that their big-firm lawyers should be, too. The authors of Nudge conclude that choice architects need to inform people about what other people are doing. Humans are easily nudged by other humans; they like to conform.

Now isn’t that just circular reasoning, to suggest that we are going to create diversity by nudging others to conform? But it is exactly the conformity that will propel us toward the ultimate goal: a diversity culture. Until our leaders, our bosses, our coworkers, our customers, and our friends consider diversity “normal,” it will always be the goal, not the reality.

We have come a long way. There are more women than men enrolled in law school right now; there have been people of color and women on the U.S. Supreme Court and all of the federal courts below; and Fortune 500 companies are now run by women and minorities.

We do, however, need to continue to nudge decision makers by encouraging minority leadership, recruitment, and retention in the law, in higher education, in business, and in our children’s classroom. Only by creating diversity do we make diversity normal and nudge society as a whole to conform to the diversity culture. Although I wish it did not matter, diversity initiatives are still important. But someday, certainly during my lifetime, we will have nudged people into conforming to a diverse culture. I believe it and you should, too—or else it will never become reality. How is that for a little nudge?

Jennifer J. Ator practices with Hankins & Ator, PL. She may be reached at .

Copyright 2008

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