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Doing it differently: Uncovering

Should you hide your true self in order to progress? GC looks at some under-the-radar areas of diversity through the lens of NYU law professor Kenji Yoshino’s work on covering, and showcases GCs promoting LGBT diversity and social mobility through ground-breaking initiatives.

LGBT and social mobility initiatives

In his book Covering – The Hidden Assault on Our Civil Rights, NYU School of Law professor Kenji Yoshino tells of his journey to accept his identity as a gay man. First he sought to be straight (what he calls ‘conversion’), then to appear straight (what he calls ‘passing’), and then to downplay his homosexuality, even to those who with whom he was out of the closet. This latter stage, which Yoshino describes as ‘covering’ (adopting a term coined by sociologist Erving Goffman), is the lens through which Yoshino views a host of American society’s demands for diverse individuals to mute their difference in order to assimilate into the mainstream. He draws a distinction between ‘flaunting’ (or engaging in openly ‘different’ behaviour) and ‘covering’ in his book with a vivid description of his return from the Pines, a summer destination popular among gay men:

‘At some point on the train ride, I look up and realize the moment has passed – the moment when straight culture has reasserted itself. Men who were lolling in each other’s arms are now separate, fingers that were interlaced are now disengaged, tattooed bodies have disappeared into their clothes, faces have tightened.’

Professionally different

It’s not just gay people who experience this pressure, stresses Yoshino – so do all groups that fall under the banner of ‘civil rights’, be they ethnic or religious minorities, women or disabled people. In fact, he believes, everyone is subject to such demands. He writes about the many repressed ‘selves’ that form an individual, some of which are deemed culturally unacceptable and, crucially, are seen as a behavioural choice rather than an immutable fact. Frequently in US society (and echoed in the court system) people are punished for ‘choices’, but not for what they cannot help, says Yoshino. And this applies in spades to the job market. In his own experience as an openly gay academic, his sexuality was accepted, but he was warned by a colleague that he should avoid teaching and writing on ‘gay’ subjects: ‘“You’ll have a better chance at tenure,” he cautioned, “if you’re a homosexual professional than if you’re a professional homosexual.”’

In reading Covering, I was reminded of the flurry of UK press coverage in the wake of a June 2015 Social Mobility and Child Poverty Commission report on the non-educational barriers to employment in elite professions, including the law. Its results were decried as a ‘poshness test’ by many newspapers, and the report details how UK recruiters are using imprecise factors such as ‘polish’, including accent and mannerisms, to assess the quality of applicants, leading to fewer hires being sourced from state schools, particularly those that are non-selective. The report quotes one source (in the context of selecting applicants early in their time at university): ‘If you’re getting picked at 19 and you’re from a socially less desirable background, you haven’t had three years to learn to speak properly and iron out some of the embarrassments that would be an impediment to you.’

In the same way that Yoshino describes how many gay people choose to mute any outward signs of homosexuality, in the UK, candidates for professional roles feel under pressure to cover aspects of themselves that might suggest a working class background. And that pressure is not imaginary. One employer is quoted in the report describing a recent recruit being directly schooled in covering her less-than-illustrious pedigree: ‘We need to talk about the way that she articulates, the way that she, first, chooses words and, second, the way she pronounces them… it will need some polish because while I may look at the substance, you know, I’ve got a lot of clients and a lot of colleagues who are very focused on the personal presentation and appearance side of it.’

So who is exerting the pressure – employers or clients? The chief executive of the UK Social Mobility Foundation, David Johnston, thinks that in the case of the legal profession, pressure from clients for private practice lawyers to conform to the middle class mould is overplayed, and that law firms are laying their own prejudice at the door of legal departments: ‘They say, “we couldn’t put them in front of a client”. Actually clients are neither exerting pressure to change this, nor are they saying, “we must have people who have the same accent, who have all been to Oxbridge”… It just hasn’t hit their agenda in the same way because it isn’t so obviously visible.’

What’s key here is the issue of conspicuous difference. Some diverse groups are more visible than others and, in the case of LGBT and social mobility issues (to take just two examples – there are many more), a workplace might, perhaps inadvertently, project an atmosphere of ‘don’t ask, don’t tell’.

The whole self

Yet there is much talk in diversity circles of the importance of being able to bring the ‘whole self’ to work, and workplaces that place restrictions – unspoken or otherwise – on the freedom of the employees to be themselves suffer as a result. Peter Siembab, associate general counsel at Bank of America Merrill Lynch (BAML) in Hong Kong sums this up: ‘… by covering, you suffer from a bit of fear, a bit of loss in productivity, less of a bond with others in the office.’

Often those who perceive themselves to be different to the majority working in a particular field will count themselves out rather than make the courageous decision to go where few of their connections have gone before, and risk feeling the ‘quiet desperation’ that Kenji Yoshino associates with covering.

Pressuring the pipeline

If you ask David Johnston, GCs have a huge amount of agency to change the private practice side of the legal profession and, by extension, their own ranks, given that law firms are so often a pipeline for in-house departments. Johnston argues that clients putting pressure on their supply chain is a major factor behind the gender diversity initiatives proliferating in UK law firms today, and suggests that the same effort should be put into driving social mobility.

UK media company ITV is working to form clusters of in-house and private practice organisations to provide less privileged candidates with some of the soft skills that their more affluent counterparts take for granted (see for the full story). Does this encourage ‘covering’? Perhaps, but if the legal profession becomes more diverse, the demand to blend in will diminish.

‘There is much talk in diversity circles of the importance of being able to bring the “whole self” to work.’

In the field of LGBT diversity, BAML has a range of initiatives to promote inclusion. Its Ally programme encourages staff to place a card on their desks as a visible show of support for LGBT colleagues. The legal team also engages with the US-based National LGBT Bar Association, is a member of ‘Out in Law’, and runs a law firm diversity award programme, of which LGBT is a key component.

There are two parts to affecting change, says BAML’s Peter Siembab: ‘There’s creating a safe and inclusive environment, so people feel they can bring their whole selves to work and not have to worry about hiding or covering. But what is important to us is driving change beyond just the bank, and we do that via engagement with law firms. As a significant buyer of legal services, we can drive change.’

In this issue, GC throws a light on in-house counsel who are working to promote diversity in some less outwardly discernible arenas of difference – specifically those of LGBT and social background – so that lawyers in-house and in private practice are disincentivised to cover their true selves. Fundamentally, these teams are putting diversity dialogue into the spotlight – which Kenji Yoshino would surely applaud.


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