November 08, 2018 Article

Cultural Competency: From the Field to the Boardroom

By Janice V. Arellano and Andrew E. Arthur

As the new bar year begins, so does another American football season. Last year, in 2017, an average of 18.6 million Americans watched “Sunday Night Football,” so football can influence a vast amount of people from all walks of life. But all that influence often comes with controversy. Whether or not you agree with players kneeling during the national anthem, the issue of players protesting is not new. Further, racial inequality continues to exist and unnecessarily oppresses racial and ethnic minority populations. 

Despite National Football League (NFL) players getting a lot of pushback and mixed attention, employers at firms and companies can take a play from the NFL’s playbook, particularly from the late Pittsburgh Steelers’ owner Dan Rooney. In 2003, Rooney developed a policy known as the “Rooney Rule” requiring all NFL football teams to interview at least one minority candidate for head coach and senior operation openings. Today, his son, Art Rooney II, current President of the Steelers, continues to advance leaders of color in sports. It has been lauded as a successful policy, especially by helping increase opportunities for minority coaches in the NFL and nearly doubling the amount of minority head coaches compared to years prior to the Rooney Rule.

In the legal field, the “Mansfield Rule”—adopted from the Rooney Rule and named after Arabella Mansfield, the first woman admitted to practice law in the United States—certifies that law firms consider at least 30 percent of women, LGBTQ+, and minority lawyers for “significant leadership” roles in the firm. According to the Diversity Lab, 65 law firms and legal departments at leading companies have been deemed “Mansfield Certified.” While there is much to celebrate, this article aims to take these “rules” and put them into practice by urging law firms, legal departments, and businesses to consider training culturally competent leaders.

According to the American Psychological Association, cultural competence is “loosely defined as the ability to understand, appreciate and interact with people from cultures or belief systems different from one’s own.” In other words, cultural competence training can help people gain an awareness of their own biases, disrupt stereotypes, and help lawyers increase their ability to positively interact with people outside of their socioeconomic status, racial/ethnic identity, and/or sexual orientation.

No matter how diverse a firm, company, or sports team, the phenomenon of unconscious bias presents another hurdle to achieving equality and the advancement of diverse lawyer success in the workplace. The Mansfield and Rooney Rules help fill positions with diverse leaders, but increasing retention rates and long-term successes of these leaders is paramount. Although studies have shown that the presence of population diversity reduces unconscious bias, existing diversity initiatives have only gone so far. First, unconscious bias is so prevalent in work settings, but it is also difficult to prove under Title VII and Title II doctrines and/or other state employment anti-discrimination legal schemes. Especially in the legal field, a law firm can have LGBTQ and/or racially diverse attorneys with the title “partner,” but are they given opportunities beyond the title, such as senior management positions, competitive compensation, or taking the lead by first-chairing major trials for the firm? Are employers understanding the particular cultural mannerisms of diverse lawyers and allowing them to embrace their authenticity when it comes to performance evaluations and leadership opportunities?

Surprisingly, many states do not currently require sexual harassment training, but slowly quite a few are now adopting legislation on mandatory training for businesses and other initiatives in the wake of the #MeToo movement and widespread allegations of sexual harassment in the workplace. However, we also urge companies and law firms be at the forefront in considering developing regular cultural competence training, to help combat cultural bias and discrimination in the workplace.

Key stakeholders for any law firm, company, or sports team will be impacted by the organization’s cultural competence. When the workforce is not only diverse but culturally competent, the workplace culture often maximizes its relationships and profits, impacting the bottom line. A company’s cultural competency also influences decisions about who gets chosen for certain kinds of assignments, how employees are judged in evaluations, and who gets promoted.

Companies that wish to increase diversity in its management and customer base should know that it makes wise business sense to also understand how to implement cultural competence training in various forms. Diversity will not be maintained if inclusion and cultural competence do not exist. For example, earlier this year, Papa John’s sales plummeted as a result of its founder, John Schnatter, using a racial slur during a conference call; Netflix fired its chief communications officer after he used a racial slur in work conversations; and Starbucks closed its U.S. stores for one day to offer anti-bias training to over 170,000 employees after an incident where an employee denied Black customers access to the bathroom in a Philadelphia store.

Medical schools and health care institutions have developed programs to train students, residents and nurse practitioners to be culturally competent. Specifically, in New Jersey, there is a requirement for cultural competence training in accordance with guidelines set by the Association of American Medical Colleges as a requirement for graduation from medical school.  It is also used as a metric for performance evaluations and in core curriculum. However, many law schools and firms do not have similar trainings, methods, or programs.

Law firms and in-house legal departments should find ways to incorporate training for cultural competency skills for their employees. This can be in the form of a CLE or workshop luncheon with diversity and inclusion experts outside of the law. The ability to effectively represent clients and attract a diverse employee and customer base will contribute significantly to not only the success of the company or firm but also to the advancement of diverse lawyers.

Janice V. Arellano is a litigation associate at Norris McLaughlin, P.A. in Bridgewater, NJ. Andrew E. Arthur is a judicial law clerk for the U.S. Bankruptcy Court, District of New Jersey in Newark, NJ.

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