Bobbi K. Dominick

Published November/December 2021

Across the country, debates about “critical race theory” (CRT) are raging in legislatures, school boards and organizations, and in diverse locales.  While it may seem like a “passing fad,” or cultural hot button issue, diversity practitioners and leaders should pay close attention. Now is the time to reexamine the most effective, and defensible, strategies that will continue to advance diversity despite these cultural debates.

What is Critical Race Theory?

“Critical race theory” is a tool, traditionally used in academia, to analyze historical racism and its impact on institutions and systems, not individual discrimination.[1]  Critics have re-defined the term and used it to attack a wide variety of what they view as social ills.[2] These critics seek to characterize the study of racism as discrimination against Whites. The debates are accusatory and divisive. Critics have characterized the theory as “un-American.”[3] Those CRT critics are waging a battle to eradicate it in schools, organizations, and places where CRT does not really exist.  In its broadest sense, these opponents of CRT equate it with diversity. Because of this debate, CRT has been villainized and attacked at the highest levels of government.[4] The debate has, and may continue to, impact diversity initiatives.

How Has the Controversy Over CRT Impacted Diversity Initiatives?

Many organizations advance diversity in numerous ways, including through diversity committees, or establishing recruiting, promotion, retention, and training policies that promote diversity.  Organizations also mandate supervisory or employee training that promotes respectful treatment and prohibits discriminatory behavior. Some of these training programs (also required to protect against discrimination claims) include topics like privilege, bias, and similar issues.

The first real impact of the CRT debate took aim at these diversity training programs.  Former President Trump took up the CRT banner and issued Executive Order (EO) 13950 on September 22, 2020.[5] That order prohibited federal agencies and contractors from conducting training containing purported CRT concepts.

Agencies, organizations, and practitioners had to immediately decide what actions might violate the order. While there is still controversy over exactly what should and should not be taught in diversity training,[6] certain topics seemed to be prohibited by the EO.  For example, one expert theorized that the following changes were likely required under the EO:[7]

Terms like “white privilege” should be “scrubbed” from training language. Teaching about privilege is one way that diversity trainers have tried to demonstrate that hidden privilege may hamper inclusion efforts. For example, trainers might talk about advantages some have had, and how race, gender, or other factors might have influenced situations, as a way to help learners recognize that privilege may result in a form of subtle bias.

Training around unconscious or implicit bias was apparently prohibited by the EO. Unconscious bias training, while some view it as potentially ineffective,[8] had become a staple of many diversity trainers.  As humans, we all have inherent biases that derive from the way our brains take “shortcuts,” and perceive the world around us, based on who we are, how we were raised, influences we have been subjected to, etc.  These biases help us to live and function every day.[9] Some implicit biases could cause us to behave in ways that are prejudicial to other humans, whether because of the way they look, the class they belong to, or our presumptions about how they will behave.  While there is some question about whether we can “train away” implicit bias, the first step, and the one included in many types of diversity training, is to make everyone in a workplace aware that implicit bias exists and invite people to explore and examine their own biases.  As people become aware, they may take steps to avoid problem behaviors, like assuming that a person of color will act or think a certain way.

Unconscious bias training, while some view it as potentially ineffective,[8] had become a staple of many diversity trainers.

Nearly immediately, diversity experts reported that the EO was having an impact on whether they could deliver meaningful diversity training in federal agency and contractor settings.[10]

Lawsuits challenged this EO[11] in the fall of 2020.[12] In one case, the court granted a nationwide injunction preventing enforcement of EO 13950.[13].  One suit alleged that agencies were prevented from effectively addressing “harms, privileges, and disadvantages associated with systemic discrimination and implicit biases.”[14]

On January 20, 2021, President Biden issued an Executive Order rescinding the prior EO.[15]  While this was a relief for federal diversity experts, it also meant that legal questions about the impact of the CRT debate on diversity training were never resolved.

Systemic discrimination has existed in our history and this debate has shone a critical light on some of our national legal history around discrimination, including the Dred Scott decision, where the U.S. Supreme Court concluded that Blacks “had for more than a century before” the Constitution’s adoption “been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect.”[16]  Other reported decisions from our early legal history reveal outdated notions of racial and gender superiority.[1

While court cases over the last century have subsequently disavowed the discriminatory attitudes reflected in these opinions, members of the protected groups have sometimes continued to face societal discrimination and are still often subjected to hostile work environments.  A quick reading of the most recent news briefs issued by the Equal Employment Opportunity Commission will demonstrate that individual workplace discrimination remains alive and well.[18]

Efforts by organizations over the last few decades to eliminate such discriminatory attitudes have included the creation of diversity, equity, inclusion, and belonging (DEIB) initiatives that create a respectful workplace for all and encourage all workers to eliminate bias in their interactions with co-workers.  Those efforts were in doubt, and challenged, by EO 13950, which prohibited any type of training that would cause individuals to feel “discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex.” 

The events of the fall of 2020, and the continued raging debate over CRT, demonstrates that there is a potential for the controversy to significantly change the way that diversity initiatives are created and implemented. 

Continued Debate Around CRT Will Reach Organizations and Associations

In 2021, efforts to use CRT as a basis for state legislation began in earnest.  In most cases, the focus was upon allegations that CRT was taught in public schools.  Many legislatures, including Idaho, passed legislation prohibiting such teaching.[19]

In addition, organizations of various sizes have been rocked by controversy related to diversity and inclusion, as debates over race and discrimination continue.[20]

Christopher Rufo, a principal proponent of “banning” CRT in schools, the military, and organizations, has taken aim at several large organizations (including Disney, American Express, Bank of America, Verizon)[21] which support, and train on, diversity and inclusion, labelling them as “CRT proponents.” Legislators have begun openly advocating that “diversity, equity, inclusion” are new terms for CRT.[22]

What Should Organizations, Including Legal Organizations, Do About CRT and Diversity?

Many research studies show that diversity makes good business sense.[23] This is especially true when organizations focus on recruiting diverse candidates, or training to encourage respectful workplaces, but also most often when business goals are tied to inclusivity and diversity.[24] In the legal profession, one effort is spearheaded by Diversity Lab, which seeks to boost diversity through innovation, data, and behavioral science.  Several Idaho firms (multistate) have been recognized for their efforts in promoting inclusion and diversity by receiving a Diversity Lab Mansfield Rule 4.0 certification. (Holland & Hart; Perkins Coie; Stoel Rives).[25]

Idaho, in particular, is less diverse than other legal markets.  But the most recent census figures tell us that some parts of Idaho are becoming more diverse,[26] so Idaho legal organizations must examine their hiring, promotion, and inclusion practices if we are to welcome diversity. The most recent Bar survey on diversity of race/ethnicity (from 2016) reveals that the Bar remains overwhelmingly White, measured at 94.21%.[27]

Idaho firms should look to some of the suggestions in the next section if diversity is a desired value for the Bar[28] and for individual organizations we serve.

How Should Diversity Practitioners Respond to the CRT Debate?

The concern for diversity practitioners is that continuation of the CRT debate could eventually impact diversity initiatives within workplaces.  Employees who follow the debate could challenge or question the content of diversity training or practices. Efforts to hire diverse candidates could be challenged, by arguments that such efforts adversely impact a particular race (white), and thus are themselves discriminatory. Practitioners should anticipate such debates, and those who advise organizations should encourage critical examination of hiring, promotion, and training practices to assure that the practices used are sound and defensible.

Here are some examples of where the CRT arguments might impact legal practice:

Disparate impact discrimination claims. At least one federal judge has pointed to CRT as a reason for eliminating the disparate impact theory of racial discrimination.[29] If organizations use any sort of statistical analysis to make changes, based on an assumption that practices may be adversely impacting a particular class of people, they should closely examine whether the analysis is defensible.

Reverse discrimination claims. The debate suggests that practices which promote diversity are perceived by some as having a discriminatory impact on Whites. We may see a rise in claims that an organization’s efforts to increase diversity are a form of reverse discrimination.

How Should Organizations Respond?

Organizations, including legal organizations, should also closely examine their diversity practices, to assure that the practices are serving their intended purpose, and are effective. Here are some examples:

Effectiveness and content of training. Many organizations have implemented training around a respectful workplace and diversity.  Those training programs are needed, and may be helpful, but some programs may stray too far, using techniques and practices that are not proven to be effective, and may be counterproductive.  Many organizations may include discussions of privilege and of implicit bias. 

Those are important to include if the goal is to raise awareness, but the way the issues are presented is important, and follow-up is important.[30]  Those topics are not designed to be a “one and done” in practice, but many organizations use them in that way.  Training may be most effective if the concepts are incorporated into leadership systems, leadership training, and business goals. In addition, the research may show that training, and behavior expectations, for behaviors like bullying, disrespect, and incivility may have a better outcome for diversity.[31]

Hiring and promotional practices. Use of techniques to encourage benchmarks for considering potential candidates that meet diversity criteria can help increase diversity within hiring and promotional classes.  But care must be used to assure that candidates are not favored solely based on their diversity, lest reverse discrimination claims arise.

Business goals that include diversity and inclusion lens. Research has consistently shown that diversity increases within an organization, and is most effective, only when DEIB efforts are intertwined within the business goals of the organization.

Employ techniques to interrupt implicit bias within organizations.Experts have identified many different kinds of techniques to assure that diverse candidates have a level playing field when it comes to hiring, legal assignments and development, promotion, etc. Many of those techniques in the legal field are detailed in an ABA report. [32]

There are many other areas where critical examination, research, and discussion may be necessary to assure that the legal profession,[33] legal organizations, and the organizations we advise, are encouraging diversity and inclusion in ways that are truly effective.  The current cultural debates over CRT should not deter an increased focus on assuring opportunity for all.

BIO

Bobbi K. Dominick is a sole practitioner in the employment law arena through conducting workplace investigations, respectful workplace training, and providing expert testimony in the area of discrimination and harassment prevention. She is an author of nationally published books Preventing Harassment in a #MeToo World (2018) and Investigating Harassment & Discrimination Complaints (2003). 

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Endnotes

[1]  Jacey Fortin, Critical Race Theory: A Brief History, N.Y. TIMES, July 27, 2021, https://www.nytimes.com/article/what-is-critical-race-theory.html?searchResultPosition=2

[2] Such critics are numerous, but they include The Legal Insurrection Foundation, which has made CRT a showpiece of their cultural attacks, see https://criticalrace.org/, and Christopher Rufo, who has championed the theory that CRT is evil and must be eliminated, see https://christopherrufo.com/the-truth-about-critical-race-theory/.

[3] See, for example, Joy Pullman, It’s Critical Race Theory That Is Un-American, Not Laws Banning It, THE FEDERALIST,  located at https://thefederalist.com/2021/07/07/its-critical-race-theory-that-is-un-american-not-laws-banning-it/.

[4] See, e.g., Charles M. Blow, Demonizing Critical Race Theory, N.Y. TIMES, June 13, 2021, https://www.nytimes.com/2021/06/13/opinion/critical-race-theory.html?searchResultPosition=1

[5] The EO is no longer in official federal documents but is archived at https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-combating-race-sex-stereotyping/

[6] See, e.g., Ilana Redstone, Diversity Training and Divisiveness:  A Real Problem That Needs a Better Solution, FORBES, October 15, 2020 https://www.forbes.com/sites/ilanaredstone/2020/10/15/its-time-to-fix-diversity-training-part-1/?sh=36219f09da04 and Ilana Redstone, This is Why Diversity Programming Doesn’t Work, FORBES, November 18, 2020, https://www.forbes.com/sites/ilanaredstone/2020/11/18/this-is-why-diversity-programming-doesnt-work/?sh=7da8298566d5.

[7]  Kenneth Hein, Legal Expert Unpacks What Trump’s Executive Order on Diversity Training Means for Agencies, September 29, 2020, THE DRUM, https://www.thedrum.com/news/2020/09/29/legal-expert-unpacks-what-trump-s-executive-order-diversity-training-means-agencies

[8] See, e.g., Michelle M. Duguid & Melissa C. Thomas-Hunt, Condoning Stereotyping? How awareness of stereotyping prevalence impacts expression of stereotypes, J. Applied Psychology, 2005, https://content.apa.org/doiLanding?doi=10.1037%2Fa0037908.

[9] See Project Implicit, located at https://implicit.harvard.edu/implicit/

[10] Jessica Guynn, ’It’s Already Having a Massive Effect’ Corporate America Demands Trump Rescind Executive Order on Diversity, USA TODAY (October 9, 2020) https://www.usatoday.com/story/money/2020/10/09/trump-rescind-diversity-racism-executive-order/5939538002/

[11] National Urban League v. Trump, Case 1:20-cv-03121 (D.C.D.C. 10.29.20) https://d12v9rtnomnebu.cloudfront.net/paychek/1_-_Complaint.pdf

[12] See, e.g., National Urban League above.

[13] Santa Cruz Lesbian and Gay Community Center et. al v. Trump et. al., Case No. 5:2020cv07741 (N.D. Cal. 12/22/2020) https://law.justia.com/cases/federal/district-courts/california/candce/5:2020cv07741/368312/80/

[14] Santa Cruz, paragraph 4.

[15] Located at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government/

[16] Dred Scott v. Danford, 60 U.S. 393, 404-407(1857).

[17] See Johnson & Graham’s Lessee v. M’Intosh, 21 U.S. 543, 590 (1823) (referring to Native Americans as “fierce savages, whose occupation was war and whose subsistence was drawn chiefly from the forest”); Plessy v. Ferguson, 163 U.S. 537, 561 (1896) (Harlan, J., dissenting) (noting that Chinese people are “a race so different from our own that we do not permit those belonging to it to become citizens of the United States”); Hernandez v. Texas, 347 U.S. 475, 479-80 (1954) (noting that Mexican-American children were in segregated schools, restaurants had signs saying ‘No Mexicans Served,’” and that “[o]n the courthouse grounds . . . , there were two men’s toilets, one unmarked, and the other marked ‘Colored Men’ and ‘Hombres Aqui’ (‘Men Here’)”). See also Bradwell v. Illinois, 83 U.S. 130 (1872) (Supreme Court refusing to recognize a woman’s right to practice as an attorney, citing “a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state” and that the “paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother.” Cases also reflect past societal contempt for the LGBTQ community, as noted in Bowers v. Hardwick, 478 U.S. 186 (1986).

[18] Located at https://www.eeoc.gov/newsroom/search

[19] See Idaho Code §33-138.

[20] Elizabeth A. Harris, In Literary Organizations, Diversity Disputes Keep Coming, NEW YORK TIMES, August 30, 2021,https://www.nytimes.com/2021/08/30/books/diversity-literary-rwa-scbwi.html

[21] See Rufo’s Twitter feed at https://twitter.com/realchrisrufo. Rufo also tweeted that he is working on a series “exposing” CRT in “America’s Fortune 100 companies.”  https://twitter.com/realchrisrufo/status/1430626870450540544. Rufo’s attack on organizations can be found in various articles,  https://www.city-journal.org/verizon-critical-race-theory-training?wallit_nosession=1 (Verizon);   https://christopherrufo.com/bank-of-amerika/ (Bank of America) and https://www.city-journal.org/bank-of-america-racial-reeducation-program?wallit_nosession=1;  https://nypost.com/2021/08/11/american-express-tells-its-workers-capitalism-is-racist/. (American Express)

[22] See tweet at https://twitter.com/MikeLoychik/status/1431387748984836097

[23] See, e.g., Diversity Wins: How Inclusion Matters, MCKENZIE & COMPANY (May 19, 2020) located at https://www.mckinsey.com/featured-insights/diversity-and-inclusion/diversity-wins-how-inclusion-matters

[24] Also see, e.g., Together Forward at Work: The Journey to Equity and Inclusion, SHRM (Summer 2020) located at https://prodtfw.wpengine.com/wp-content/uploads/2020/08/20-1412_TFAW_Report_FNL_Pages_V2.pdf

[25] See explanation of the criteria and list of qualifying firms here: https://www.diversitylab.com/mansfield-rule-4-0/

[26]  For example, the 2020 Census indicates that Boise’s White population is now only 62% of the total population, a reduction of 32% in the last 30 years. See https://www.washingtonpost.com/nation/interactive/2021/racial-makeup-census-diversity/?geoid=16001002319.

[27] Statistics drawn from 2016 Idaho State Bar Membership Survey, located at https://isb.idaho.gov/wp-content/uploads/2016_isb_membership_survey.pdf. That survey is five years old (a new survey may be planned for 2021) but it indicates that most other ethnic/racial categories hover around +1% of the attorney population. Statistics regarding diversity in the legal profession can be found here: https://www.americanbar.org/groups/diversity/resources/goal3-reports/demographic_trends_in_the_legal_profession/.

[28]  For example, recent studies of EEO-1 reports in large corporations indicated deep underrepresentation of Black and Hispanic representatives in the legal industry. See Jessica Guynn and Jayme Fraser,  This is America: Black and Hispanic workers are still not getting a fair shake at work, USA TODAY (September 3, 2021) https://www.usatoday.com/story/opinion/2021/09/03/black-hispanic-employees-corporate-diversity-george-floyd/5715025001/

[29] See Rollerson v. Bravo River Harbor Navigation District of Brazoria County Texas, Case No. 20-4027 (5^th Cir. 7/29/2021); see also Debra Cassens Weiss, Federal appeals judge criticizes disparate impact theory; are his opinions op-ed columns? ABA JOURNAL (August 5, 2021) https://www.abajournal.com/news/article/federal-appeals-judge-criticizes-disparate-impact-theory-are-his-opinions-op-ed-columns

[30] See, e.g., Joelle Emerson, Don’t Give Up on Unconscious Bias Training-Make It Better, HARVARD BUSINESS REVIEW, April 28, 2017, https://hbr.org/2017/04/dont-give-up-on-unconscious-bias-training-make-it-better

[31] See, e.g., Lim, S., & Cortina, L., Interpersonal mistreatment in the workplace: The interface and impact of general incivility and sexual harassment. JOURNAL OF APPLIED PSYCHOLOGY, 90(3), 483-496 (2005). http://dx.doi.org/10.1037/0021-9010.90.3.483

[32]   Many techniques for interrupting bias are included in an ABA report titled You Can’t Change What You Can’t See,  ABA Commission on Women in the Profession.  That report is available only for purchase at https://www.americanbar.org/products/ecd/ebk/358942050/. See also tools located at https://biasinterrupters.org/toolkits/orgtools/.

[33] Beyond the scope of this article is a discussion of what the Idaho State Bar itself can do to encourage diversity, such as promoting civility and fair treatment.  Some Bar organizations have adopted ethical rules in this area, but Idaho has yet to do so. See letter from Chief Justice Roger Burdick, Idaho State Bar Advocate, 61 ADVOCATE 17 (2018). https://heinonline.org/HOL/P?h=hein.barjournals/adisb0061&i=853.