There is much chatter these days about the words diversity and inclusion (D&I). They are terms almost always used together, like peanut butter and jelly.

Yet diversity and inclusion are not so obviously different from each other as "right" and "wrong" or "up" and "down." In fact, people often use them as synonyms. If the D&I movement is to garner full and due consideration, however, these terms should be better defined, which will in turn lead to more frequent and effective implementation.  

If the Diversity & Inclusion movement is to garner full and due consideration, these terms should be better defined...

It may be easier to understand the subtle differences if we use an illustration.

According to Tim Donnelly, general counsel for American Vanguard Corporation, "Philosophically speaking, diversity is the state of having different qualities present at the same time. Presumably, in a group endeavor (as in an orchestra), one would seek unity in diversity, which is known as harmony. Inclusion would be the act of inviting various elements into a group, as in bringing reeds or strings into an orchestra."  

Diversity means having the opportunity to sit at the table. Inclusion means getting to participate, thereby enriching the collective endeavor. Is your D&I mission complete if you have achieved diversity but not inclusion? 

Diversity means having the opportunity to sit at the table. Inclusion means getting to participate...

Many people would argue that it is not, and when looking at numbers that show a lack of diversity in law firms, it is easy to see how a law firm could be negatively affected.

According to the National Association for Law Placement or NALP, from 2009 to 2017, there were only slight increases in diverse populations of law firm partners. For Asian partners, numbers changed from 2.2 to 3.31 percent, for Latino partners numbers changed from 1.65 to 2.4 percent, and for black partners numbers changed from 1.71 to 1.83 percent. In these significantly small percentages women made up only 2.9 percent of partners. However, the flipside of the coin shows that the majority (over 90%) of partners are white and about 80% are men. 

As a result, while firms may be more diverse by having individuals of various backgrounds, these numbers beg the question of whether diverse individuals are truly being included when they do not hold positions of power or leadership within the firm.

...what the firm does and how it utilizes diverse individuals is even more important.

The distinction really comes down to this point: It is not only crucial to have diverse individuals at a firm, but what the firm does and how it utilizes diverse individuals is even more important.

Essentially, these individuals need to be included in the firm culture. The real hurdle, then, is to take steps that make the inclusion of diverse individuals sewn into everyday life at the firm; especially at solving challenging legal problems. 

So what are some ways to achieve higher rates of both diversity and inclusion in your business?

From a diversity standpoint, this may be a little easier. While discussing big points from the 2018 NALP D&I Summit, the Legal Marketing Association suggests that firms begin by using diversity and inclusion tactics in their recruitment strategies.

For example, firms should try switching up the type of language used in job ads, include explicit diversity and inclusion messages from firm leaders in recruiting materials, and have videos of diverse men and women describing why they love their firm on the firm's website. 

From an inclusion standpoint, however, firms may face more challenges.

The focus of firms should not be on just the number of diverse individuals that they have but how the firm will create an environment that fosters the collectivity of all individuals. For some firms, this means having a diversity and inclusion committee, but for others it may go far beyond a committee. Instead, a firm might consider hiring a professional who is dedicated to creating an inclusive firm culture. This professional can focus entirely on ways that the firm can foster a community of collaboration, using an outside perspective of what works and what does not work for the firm. Another resource is to join an organization with a D&I mission.   

...a firm might consider hiring a professional who is dedicated to creating an inclusive firm culture.

According to Joel Stern, CEO of the National Association of Minority and Women Owned Law firms (NAMWOLF), “The Legal profession is dead last with respect to other professions in terms of hiring and retaining minorities and women. While both diversity and inclusion are important to look at within legal groups, diversity without inclusion doesn’t actually help achieve demonstrable positive changes in our legal profession. 

“Diversity is any dimension that can be used to differentiate groups and people from one another. In a nutshell, it’s about empowering people by respecting and appreciating what makes them different, in terms of age, gender, ethnicity, religion, disability, sexual orientation, education, and national origin.

“Inclusion is the collective organizational effort and practices in which different groups or individuals having different backgrounds are culturally and socially accepted, acclimated and equally treated. These differences could be self-evident, such as national origin, age, race and ethnicity, religion/belief, gender, marital status and socioeconomic status or they could be more inherent, such as educational background, training, sector experience, organizational tenure, even personality, such as introverts and extroverts. Evidence shows that when people feel valued, they function at full capacity and feel part of the organization’s mission. This culture shift creates higher performing organizations where motivation and morale soar.

“Law firms and in-house legal groups that focus on both diversity and inclusion are more likely to be successful in attaining their diversity and inclusion goals and having a truly inclusive legal group. 

“By the way, the secret sauce of NAMWOLF is we are truly an inclusive organization focusing on creating a more diverse and inclusive profession.”

Even though some things are often thought of as going together, it is extremely important in the D&I context to keep these as two distinct concepts. These ideals must both be recognized and appreciated on their own.

Only then can a firm begin to make real progress.

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[Shannon Jenkins is a partner at TLD Law. She has over 20 years of litigation experience with a primary focus on Employment Law. Her practice represents employers in disputes from pre-litigation through jury trial or bench verdict, individual, class action and representative cases, administrative, judicial forum(s) and alternative dispute resolution.]