Diversity Insider

Before diving into performative allyship, it is important to understand the meaning of allyship. Allyship is a crucial factor in promoting diversity and inclusion within the legal profession — or in any profession. Allyship is the act of promoting and advancing diversity and inclusion through supporting members of an oppressed or marginalized group.

Performative allyship, however, is based on the idea of immediate self-gratification and attention. Performative allyship usually involves the ally sharing their knowledge about inequality, while also refusing to use their privilege and resources to effect real change. Performative allyship can take on many forms. Within the past year, performative allyship took on the form of companies posting “black squares” on #BlackOutTuesday on social media platforms and issuing empty statements of solidarity with marginalized communities and supporting racial equity. However, virtually none of these companies had diverse teams and did not have history of vocalizing support or solidarity with marginalized communities.

In the law firm world, some examples of performative allyship include firms creating diversity committees (with no diverse attorneys as committee members); issuing diversity and inclusion statements or pledges (while no diverse attorneys are employed at the firm); or, even worse, promoting those same diversity and inclusion statements and diversity pipeline initiatives while no diverse attorneys are among the firm’s leadership ranks.

These examples are not exhaustive; however, given the popularity and frequency of these actions, performative allyship has become a trend within law firms and a block for progress in the legal profession. To effectively end performative allyship, law firms should focus on the following points.

1. Education Leads to Effective Allyship: First, firms must realize that allyship is a verb, not an adjective. To end performative allyship, firm leaders must educate themselves, uncover their unconscious biases, and work toward disrupting those biases. Being an ally involves the willingness to routinely fight injustices and promote equity within the workplace. Firm allies should not expect to be taught, but should expect to use the tools available to learn how to be an effective ally.
2. Be a Real Advocate for Diverse Talent: Next, firm leaders must be intentional about moving the needle toward increased diversity and inclusion within the workplace and within the legal profession and serve as a mouthpiece, or a sponsor, for diverse attorneys within the firm. From day one, law firms should assign sponsors to young diverse attorneys to integrate them into the profession and into the workplace. As a sponsor, firm leaders should offer constructive feedback, provide diverse talent with autonomy, empower decision-making, encourage client contact, support diverse talent in their professional endeavors outside of the firm (such as participation in professional organizations, speaking engagements, etc.) and notably, including them in the firm’s marketing and business development opportunities with potential clients. The use of these inclusive behaviors fosters innovation and encourages a broad range of viewpoints and opinions from diverse people. Inclusive leadership is undoubtedly a crucial part of being an effective ally, and sets the standard for creating a firm that proactively seeks diverse opportunities to positively impact firm culture.
3. Money Talks: According to the National Women’s Law Center, Black women are paid 63 cents for every dollar paid to their white, non-Hispanic male counterparts, leading to a lifetime loss of $867,920. Latinas are typically paid just 55 cents for every dollar paid to Hispanic men, which leads to a loss of $2,425.00 every month. Effective firm allies must ensure that diverse talent not only works on the client’s matters, but will receive the financial credit. Law firms often participate in “window dressing,” which involves sending diverse attorneys on marketing pitches as props. After receiving the work, the firms shield the diverse attorneys from working on the client’s files, although those attorneys assisted in obtaining the work. Firm allies should undoubtedly have equal opportunity for advancement within the firm and offer equitable pay to diverse talent. Firms should also consider making their compensation models more transparent and equitable to boost retention and reveal a clear growth for diverse talent.

Avoiding performative allyship is a key part of creating an environment of inclusivity in the workplace. Practicing allyship involves continuous action and being intentional about showing support to diverse groups. To be effective as allies, firm leaders must educate themselves about their privilege and the inequities which exist within the legal profession and walk the talk in promoting diversity and inclusion within the profession.

Ebony S. Morris is an associate attorney based in the New Orleans office of Garrison, Yount, Forte, & Mulcahy, L.L.C. Ebony has extensive experience in defending premise liability, product liability, trucking liability, retail and hospitality liability, and mass tort litigation matters. In those areas, Ebony represents product manufacturers, corporations, national franchise restaurants, insurers, and their policyholders through all phases of litigation. Recently, Ebony was selected for inclusion in the 2020, 2021, and 2022 Louisiana Super Lawyers “Rising Stars” Lists, 2021 New Orleans CityBusiness “Ones to Watch,” The National Black Lawyers “Top 40 Under 40,” the 2020 Lawyers of Color “Hot List,” and the National Association of Women Lawyers 2021 Rising List. She was a recipient of the 2020 Outstanding Young Woman Lawyer Award from the National Bar Association Women Lawyers Division. She has also been named to the New Orleans Gambit’s 2021 40 Under 40 Class for her contributions to the legal community.

Workplace Well-Being

Workplace well-being is an ongoing journey where a work environment is cultivated for employees to feel confident, empowered, productive, respected, safe — physically and mentally — recognized and appropriately rewarded, trusted, and valued. All workplaces have “issues”; however, a healthy workplace is one where employees believe that their employers are addressing “their” issues affording them the serious consideration they deserve, no matter their perceived magnitude. Employers have expectations too: That their employees will fulfill their responsibilities and do their best to contribute to their organization’s operations. Workplace well-being is a critical component to an organization’s culture and success. If you ask any former employee who has parted ways with an organization to provide the reasons for their departure, cultural consciousness is likely to be within the top three reasons.

QUESTION: How do you know if you have a healthy and well workplace?

MOORE: Our firm is comprised of approximately 120 attorneys and staff members. We are fortunate in that our mid-sized organization can provide some comradery and support to our employees, whether they are working in-person or remotely. We often work in multiple teams, which fosters accountability and frequent communications and check-ins, many of which are not work-related. Prior to the pandemic, we would routinely have team-building activities, whether it was monthly birthday celebrations, firm anniversary celebrations, staff appreciation lunches, community service projects, holiday gatherings, etc. Although the law firm environment can be particularly challenging when organizing such activities due to numerous scheduling conflicts, we are pleased to report that turnout and participation at these team-building events have been impressive.

Another benefit of our size is that we consider ourselves a “family,” so like a typical family, we are not perfect. We often know when others are facing challenges as well as when they are celebrating accomplishments and successes.  Our goals are to assist employees when needed and to celebrate employees accordingly. Currently, many from our firm are on the mend from the devastation caused by Hurricane Ida at the end of August. The firm immediately went into action, reaching out to employees, offering financial and housing assistance and more. A significant number of employees also contributed efforts including monetary donations, offering housing, and providing cleanup assistance. Sometimes the challenges of real life can bring us closer together; similar to what has happed with DEI efforts within our firm.

We rely on our people, and our firm believes that this builds and strengthens our connections, morale, and results in better productivity. We are proud to report that most of our employees have been with us more than a decade and our firm is only 23 years old! Our people are our greatest asset, and we do not take this for granted.

PETERS: In the absence of employees voicing their concerns, first behaviors that should be assessed are employee engagement, as well as absenteeism and presenteeism.

Absenteeism describes a pattern or occurrence of “unplanned” absences from work. For example, how often do employees miss work on a Monday and/or Friday? Are employees frequently taking extended lunches or breaks, or leaving early? When this happens on a regular basis, this can be a sign of some level of burnout, disinterest, exhaustion/fatigue, harassment, and even conditions and illnesses brought on by stress.

Presenteeism occurs when employees are working at times when they should not be, for example, when ill, at odd hours, working lengthy hours, or when juggling multiple projects, and the employees feel a need to constantly be responsive and/or work, even at times when they are not expected to do so. This can lead to frequent mistakes, frustration by all who are involved, and overall resentment by the employee as well as the employer, who may not be cognizant of the behavior. The big problem with presenteeism is that although the employee may be physically present, they are not engaged or fully productive. Presenteeism can even be an oxymoron in certain instances when the employee is “there,” but “not there.”

Employers should also consider whether employees are withdrawn, combative and/or disruptive. These patterns are often demonstrated by employees who feel marginalized or have experienced some workplace injustice that they either do not know how to or comfortable with articulating.

Never discount the informal discussions among employees. The rumor mill is and will always be a source to learn about employee satisfaction and dissatisfaction. However, this has always been territory that is off-limits to upper management! This is a great segue to the next question.

QUESTION: How can upper management learn more about addressing employees’ concerns? How does all of this intertwine with the issue of diversity, equity and inclusion and its impact on workplace well-being?

MOORE: Everyone has seen how recent events have forced open conversations that remained relatively closed for far too long. If you want to see what lies behind the doors, you are unable to do so if the doors remain closed. Unfortunately, even when doors were opened, the discussions were often awkward, and many remained fearful about having sincere discussions about the issues they were dealing with, particularly as they relate to DEI. We could not, and were not, having those courageous conversations because most of us were afraid to have such conversations outside of our safe “family” circles. We also saw how having these conversations outside those circles led to criticism, misunderstandings, and further frustrations. So, we often remained silent. However, when we realized our silence could be equated with acceptance, many of us turned from our silent ways and began to use our voices to effect change for good, and most importantly, to finally be heard and to make a difference.

PETERS: As a 52-year-old African American female attorney who has been practicing law for 23 of those years, I have lived and experienced “diversity dilemmas” for most of my lifetime. In 2020, I began to learn more about diversity than ever before. As a result of more mind-opening dialogues, I became more comfortable with sharing what I learned. I did not experience “diversity fatigue” and embraced all the conversations and questions. I also learned diversity was about so much more than “ME” — it was about more than race, gender, family status, sexual orientation, etc. It was the constant hope and wonder of whether others were looking beyond “ME” while simultaneously looking at “ME” and wondering what did they actually see and did I even care?

Like many others, particularly BIPOC, of course I cared, and one of my primary concerns was to make sure that I was appreciated and valued in the same or similar manner as my colleagues, whether it was in the workplace, professional organizations, and in my private circles. I am fortunate to work at a firm that has DEI as one of its core values. We are still working on it! However, there are still many organizations that do not, whether they are aware of it or not. As a result, those organizations will not flourish or grow and will eventually lag as they fail to embrace and value the world in which we live. Diversity must be about more than just a “business case.”

QUESTION: How can we use DEI to improve workplace well-being?

MOORE & PETERS:

The first step is to acknowledge that something must be done. Silence is NOT golden. When employees feel disconnected or that their employers are turning a blind eye to the most obvious issues, they will exit. Often, these are the “unexplained exits” as by the time the employees decide to leave, they have already made up their minds that they do not matter, that voicing their concerns will have no impact, and that they should now shift to self-preservation mode to be able to function and be healthy and well, for their next employment opportunity.

By the time you have these discussions “at the door,” it is often too late to effect change. Now an unhappy former employee is heading to the outside world where they may spread stories of your workplace culture (true or not) to the outside “rumor mill.” rectifying those perceptions can be nearly impossible. Do not forget that former employees often maintain some contact with a former coworker they befriended. So, what do you do?

Just like any other condition or illness, employers must consistently check the temperatures of their employees and the organization. Open communication, confidence, and trust are reciprocal foundational tools required to cultivate strong working relationships that will lead to a stronger work environment. Start discussions that validate your sincere concerns about employees and not simple exchanges of the usual pleasantries about weekend plans. Another unique idea is to call your employees and/or co-workers and check in on them. Now more than ever, in this world of continued distancing, a phone call is often much appreciated and unexpected. Schedule lunch or coffee/tea to reconnect and find out what is going on in their world. This speaks volumes. Show that you care.

Employees should be able to view their “workplace” as more than just a place where they report to work, whether in-person or remotely. The “workplace” must be perceived as a community that is working together to achieve certain goals. To have a healthy workplace community, DEI must be a priority. Your organization should also have specific DEI policies and practices and ensure that they are understood for effective implementation and measurement. Education is critical, and both employers and employees must understand and appreciate what DEI is and what it is not. We lead AND follow by example.

DEI is not an amorphous concept — it is about people and whether they feel as if they are a part of your organization. Do they fit in? Do you even notice them? Can you even pronounce or remember their names? How does your leadership team look? Are they a diverse group? Are there any efforts in place to make that happen?

Our firm, like many other organizations, provided mandatory DEI training for our Partners. We also provided a series of mandatory DEI discussions for our employees, and Partners were required to participate in these as well. It is just that important. Everyone must learn that DEI is more than just the often-visible characteristics that make us all unique or part of a certain group. It is the embracing of the cultural, disability status, ethnic, familial status, gender, religious, sexual orientation, traits, etc. that make us who we are. Despite our differences, we are all to be treated fairly, recognized, rewarded, and supported by being a part of an environment where these differences do not, or perceive to serve, as a derailment to our growth and success within our organizations.

Be proactive, not reactive. Be transparent with your expectations, goals, objectives, and requirements about what it takes to keep climbing the ladder, rather than employees feeling more like they have hit a brick wall or glass ceiling. Invest efforts, money, resources, and time in your people. Your people are your brand, and what is your brand saying about you?

Employers and employees should establish SMART goals, track them, and readjust where needed.  What gets measured matters. Do your actions align with your stated objectives? Employers and employees should routinely self-examine and ask, “Am I doing what I can do to advance DEI efforts within my organization?”

Diversity, equity, and inclusion matter. Workplace well-being matters. However, it takes a village to make all of this work together.

Kim E. Moore is a Founding Equity Partner of Irwin, Fritchie, Urquhart & Moore, LLC, where she has an extensive practice defending manufacturers of pharmaceutical and medical devices in mass tort and multi-district litigation matters. Kim has achieved victories in MDL, federal, and state court jury trials. She also serves as an international, national, regional, and local expert coordinating counsel and as counsel on complex scientific issues. She often presents on such topics. She is active in various community service projects, particularly those that assist and advance women.

Darleene D. Peters serves as Counsel for Irwin Fritchie Urquhart & Moore, LLC. She has extensive multi-district litigation (MDL) experience in mass tort and products liability actions involving the defense of major pharmaceutical and medical device manufacturers throughout all phases of litigation, in state and federal court. She is the Chairperson of the firm’s Diversity, Equity & Inclusion Committee. She is also certified in Health and Wellness Coaching and Nutrition Coaching and is passionate about doing her part to assist with improving the health and well-being of her fellow colleagues in her community and beyond.

This article will explore the similarities between Justice Thomas and Justice Marshall and assess whether the criticism that Justice Thomas has faced since his appointment is warranted.

Justice Marshall and Justice Thomas: Different Yet the Same

“No matter your view of Thomas’s conservative politics, it is simply undeniable that his record of jurisprudence on the Supreme Court over the past 25 years makes him one of the most important black figures of the post-civil rights era.”¹

Justice Thomas has been criticized as unqualified because he does not ask many questions during oral argument and followed the opinions of Justice Scalia.² This criticism is unwarranted because Justice Thomas is no different from “Oliver Wendell Holmes - the most influential theorist in the history of American law - [who] did not ask many questions . . . .”³   Interestingly, Justice Marshall, the man Justice Thomas replaced on the  Court, was thought not “qualified” to be a Supreme Court Justice because he did not have a “strong legal mind.”⁴

Yet, there were cries of racism when Justice Marshall was labeled a follower of Justice William Brennan and “law clerks referred to him as Mr. Justice Brennan-Marshall.”⁵ A close look at Justice Thomas’ record, however, besides that fact that Justice Scalia was  both an originalist and textualist and Justice Thomas is only an originalist, shows that Justice Thomas is more than a follower of Scalia.⁶ Contrary to popular opinion, Justice Thomas’ judicial record proves “a fiercely independent person and thinker who decides cases on the basis of their legal merit . . . manifest[ing] a genuine concern with the welfare of black America and a rejection of misguided policies . . . that has impeded the progress of blacks.”⁷

Justice Thomas is consistently compared by civil rights leaders as the antithesis of Justice Marshall because of his conservative leanings. However, just as Justice Marshall brought a special perspective to the Court based on his own personal experiences with racism, Justice Thomas also brings a unique conservative perspective to the Court with respect to issues related to education and desegregation, affirmative action, and crime to the chagrin of his critics. It also bears noting that Justice Marshall did not have the full support of the black community during his pursuit of Brown v. Board of Education. Many black conservatives viewed Brown as insulting because it failed to focus on improving educational opportunities available to African American children. Author Zora Neale Hurston noted:

The whole matter revolves around the self-respect of my people. How much satisfaction can I get from a  Court order for somebody to associate with me who does not wish me near them? I regard the United States Supreme Court as insulting, rather than honoring my race.⁸

Justice Thomas’s views are true to the principles of the Civil Rights movement that called for color blindness, which is directly in line with Justice Marshall. Yet, Justice Thomas is considered anti-black. In fact, in 1948, Justice Marshall argued, “classifications and distinctions based on race and color have no moral or legal validity in our society.”⁹ One year later, Justice Marshall urged, “racial criteria are irrational, irrelevant to our way of life, and specifically proscribed under the Fourteenth Amendment.”¹⁰ Likewise, in the groundbreaking Brown v. Board of Education, Marshall is forceful argument that “distinctions imposed . . . based upon race and color alone . . . [are] patently [arbitrary and capricious” because skin color “is a constitutional irrelevance.”¹¹ This begs the question: How then, is Justice Thomas any different from his predecessor when he argues for color blindness in his jurisprudence?

Indeed, Justice Thomas is consistently criticized for his opinions despite the fact the black people are not monolithic.¹² As one critic of Justice Thomas aptly notes:

I, too, would rather have an African-American on the Supreme Court who was closer to the views and stature of the Late Thurgood Marshall, whom Thomas replaced. But, as one black person who believes black people are as diverse as any other people, it rankles me to hear black professionals attempt to banish Thomas, merely because his views disagree with the majority of his peers.¹³

Setting aside the media and critics spin, Justice Thomas “is aware of the racial dynamics in the case he analyzes.”¹⁴ One commentator notes:

Justice Thomas’s opinions on education and African Americans contain several themes. First, they are concerned with ensuring that public policy address real problems in education for African Americans: failing inner-city schools, the relative underperformance of black males, and the like. Second, they are infused with scorn for policies supported by elites that assuage their consciences by seeming to address those problems without doing so and that allow elites to maintain essentially undisturbed the institutions with which they are familiar and from which they benefit. Third, Justice Thomas's opinions are concerned with ensuring that individual African Americans have the opportunity to succeed without being stigmatized by the existence of public policies that rest on the assumption that all African Americans need "help" to succeed. Finally, the opinions stress the value of black institutions, including the contributions they made in the past, and could continue to make, in addressing the real problems of African American education.¹⁵

By way of example, in Grutter v. Bollinger, Justice Thomas set forth his position of affirmative action by citing Frederick Douglass:

In regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us . . . . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! . . . And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! . . . Your interference is doing him positive injury.¹⁶

In Fisher v. Univ. of Tex.¹⁷, which involved a challenge to affirmative action in the admissions, Justice Thomas invoked the arguments made by attorneys in Brown v. Board of Education stating:

My view of the Constitution is the one advanced by the plaintiffs in Brown: “[N]o State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Tr. of Oral Arg. in Brown v. Board of Education, O. T. 1952, No. 8, p. 7; see also Juris. Statement in Davis v. School Bd. of Prince Edward Cty., O. T. 1952, No. 191, p. 8 (“[W]e take the unqualified position that the Fourteenth Amendment has totally stripped the state of power to make race and color the basis for governmental action”); Brief for Appellants in Brown v. Board of Education, O. T. 1952, No. 8, p. 5 (“The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone”); Brief for Appellants in Nos. 1, 2, and 4, and for Respondents in No. 10 on Reargument in Brown v. Board of Education, O. T. 1953, p. 65 (“That the Constitution is color blind is our dedicated belief”). The Constitution does not pander to faddish theories about whether race mixing is in the public interest.¹⁸

In Missouri v. Jenkins¹⁹, the Court ordered an end to a school desegregation order for Kansas City schools holding that Kansas City was not required to integrate the predominately black inner-city schools the suburban, predominately white schools. In his concurring opinion, Justice Thomas wrote:

It never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior. Instead of focusing on remedying the harm done to those black schoolchildren injured by segregation, the District Court here sought to convert the Kansas City, Missouri, School District (KCMSD) into a “magnet district” that would reverse the “white flight” caused by desegregation.²⁰

In sum, Justice Thomas’ jurisprudence does not appear to be anti-black; rather, Justice Thomas simply shows that the essence of his belief is that the Constitution requires that every person be treated as an individual rather than as a member of a racial, ethnic, or religious group. Although criticized, it appears based on his judicial opinions that Justice Thomas clearly identifies as a black man and believes that his ideologies are to help African Americans. His place in history should be celebrated by all.

Kenneth E. Sharperson is a partner with Weber Gallagher in Bedminster, New Jersey. Kenneth concentrates his practice on defending insurance carrier and corporate clients in coverage disputes. He is Chair of Weber Gallagher’s Diversity Committee and the Editor of Weber Gallagher’s Diversity Matters newsletter. He can be reached at ksharperson@wglaw.com.

1. See Armstrong Williams, Why Doesn’t the African American Museum Celebrate Clarence Thomas, The Washington Post, December 4, 2016.
2. See John Greenya, Silent Justice: The Clarence Thomas Story 263 (2001) (“Putting aside his political philosophy and his conservative credo, Justice Thomas does not deserve to be on the Supreme Court.He doesn’t have the intellect to be a member of the Court, and that’s the reason, in my opinion, that you see Thomas voting with Scalia so often.)
3. See Scott D. Gerber, Symposium: Celebrating An Anniversary; A Look Back At Justice Clarence Thomas’s Twenty Years on the United States Supreme Court: Introductory Address: Justice for Clarence Thomas: An Intellectual History of Justice Thomas’s Twenty Years on the Supreme Court, 88 U. Det. Mercy L. Rev. 667, 675(Summer, 2011).
4. Juan Williams, Thurgood Marshall: American Revolutionary 393-94 (1998).
5. See Stephen F. Smith, The Truth About Clarence Thomas and The Need for New Black Leadership, 12 Regent U. L. Rev. 513, 517 (1999-2000).
6. Id.
7. See Stephen F. Smith, The Truth About Clarence Thomas and The Need for New Black Leadership, 12 Regent U. L. Rev. 513,516 (1999-2000)
8. See Angela Onwuachi-Willig, Just Another Brother on the SCT: What Justice Clarence Thomas Teaches Us About the Influence of Racial Identity, UC Davis Legal Studies Research paper Series, Research Paper No. 20, fn. 98 (January 2005).
9. Andrew Kull, The Color Blind Constitution 146 (1992) (quoting Brief for Petitioner at 27, Sipuel v. Board of Regents of the Univ. Of Okla., 332 U.S. 814 (1947)).
10. Id. at 148 (quoting Statement as to Jurisdiction at 13, McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950)).
11. See Brief for Petitioner at 6-7, Brown v. Board of Education, 347 U.S. 483 (1954).
12. Cf. Brandon Harris, Spike Lee Discusses His New Film and Making Movies For 30 Years: ‘The Black Audience is Not Monolithic, http://www.indiewire.com/2014/06/spike-lee-discusses-his-new-film-and-making-movies-for-30-years-the-black-audience-is-not-monolithic-24814/ (June 27, 2014) (“I understand that the black audience is not monolithic.“)
13. Clarence Page, Extending An Olive Branch (With Pits) to Justice Thomas, Chi. Trib., June 3, 1998, at 19.
14. See Rachel Alexander, Celebrating 25 Years of Clarence Thomas on the Supreme Court: His Close Friend Spills the Beans, The Stream, www.stream.org, October 21, 2016.
15. See Mark Tushnet, Clarence Thomas's Black Nationalism, 47 How. L.J. 323 (2003-04).
16. Grutter v. Bollinger, 539 U.S. 306, 350, 123 S. Ct. 2325, 2350, 156 L.Ed.2d 304, 346 (2003) (The court held that the Equal Protection Clause did not prohibit a narrowly tailored use of race in admissions decisions to further a law school's compelling interest in obtaining for its students the educational benefits that flow from diversity.)
17. 133 S. Ct. 2411, 2423 (2013).
18. Id. at 2428 (emphasis added).
19. 515 U.S. 70 (1995).
20. Id. at 114. (Thomas, J. concurring).