41 Trial Lawyer • Spring 2024 diversity, or lack thereof, are underrepresentation and tokenism. Fact, not a feeling Underrepresentation is grounded in facts, numbers and data. This phenomenon takes place when specific groups are disproportionately overrepresented, resulting in a significant underrepresentation of other groups compared to their proportion in the larger population. This is evident in workplaces, media or institutions, where the demographic composition fails to accurately mirror the diversity of the broader community. Underrepresentation is not a consequence of being underqualified. Rather, it is a byproduct of biased decisions masked as merit-based qualifications. Tokenism Tokenism is an outcome of underrepresentation, but it differs in that it specifically addresses the treatment of individuals when they are the sole or select few who represent certain demographic traits. If individuals who are underrepresented are not granted substantive participation, influence or authority due to an unchanged underlying power structure, their inclusion becomes a superficial gesture and an illusion of diversity, which becomes offensive and marginalizing by those observing it or experiencing it. An example of tokenism: “We need Sarah’s input on this issue. After all, she’s our female perspective.” During a one-on-one meeting with “Sarah,” she shared many examples with me of how she encounters tokenism. As early as her law school days, Sarah was consistently singled out by her instructors, only called upon to provide her perspective on cases centered around women while ignoring her on other topics. This trend continued when she became an attorney. Despite achieving results that warranted a promotion to partner, Sarah found herself lacking any decision-making authority. She also faced comments insinuating that her elevation was solely due to her gender, undermining her accomplishments. In response, she left the firm and established her own. Erosion of trust In a recent case, the leadership team of an organization declared DEI as a priority. However, members independently assessed the representation within the leaders' law practices, revealing a noticeable disparity in gender and racial diversity. The divergence between stated intentions and actual actions cast doubt on the authenticity of their commitment to DEI. The credibility of the organization’s leadership came under intense scrutiny. Questions arose about whether their commitment to DEI was genuine or merely a superficial gesture to appease stakeholders. Persistent inconsistencies led to a rapid erosion of trust among its members who had been dedicating their time and resources to support the mission. In the end, the target demographic of members that the organization aimed to attract and involve became disengaged. They perceived the organization's advocacy as a marketing ploy and performative rhetoric. A fundamental lesson Underrepresentation and tokenism stem from preferences established by dominant cultural norms. These preferences arbitrarily link specific attributes, such as speech patterns, attire, appearance and behavior, to perceptions of intelligence, competence and capability. These unfair and unconscious associations have the potential to hinder the establishment of strong attorney-client relationships, unintentionally tokenize or gaslight diversity, and fail to effectively persuade a diverse jury. Steps to embrace diversity Diversity is achieved when bias is neutralized. It can begin through three steps: 1. Monitor and track your thoughts that involve comparing traits as inferior or superior. 2. Scrutinize your underlying criticism or categorization regarding others’ presence, speech, style, and behavior. 3. Assess and question the traits you associate with someone’s intelligence, competency, and capabilities. Tracking these patterns and being honest with oneself unveils unconscious judgments that one can work to dismantle. Simultaneously, this process enhances one’s capacity to connect with a diverse client base and jury pool. Forging the path Diversity centers on individuals, embracing who we are and the unique qualities we contribute. The absence of diversity often is a result of prioritizing recruitment over inclusion and equity. A counterintuitive reality. The belief that engaging in one activity (a) will automatically yield a specific result (b), follows a linear process that has proven ineffective in increasing diversity due to the neglect of equity. By prioritizing inclusion and equity, the realization of true diversity will become achievable. Decrypting inclusion This singular inquiry captures the core of inclusion and sets in motion an ongoing ripple effect based on the response. “Do I feel a sense of belonging within this group, or am I treated as an outsider?” Assessing your position In a professional environment, colleagues who share similar traits or affiliations effortlessly experience a sense of belonging, cultivating camaraderie See Building Tomorrow p 42
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