On March 17, Microsoft hosts Include 2021, a global, digital event focused on diversity and inclusion. Admirable, but what's the connection with legal and data?

Diversity, equity & inclusion isn't just about doing the right thing - discriminatory practices within an organization lead to serious business risks in addition to diminished business results; a reality highlighted by the presence of several prominent legal scholars in Include 2021 including Kimberle Crenshaw, Kenji Yoshino, and Chase Strangio. These risks go beyond the obvious compliance and litigation risks; they extend to heightened risk factors across the board resulting from the organizational myopia that results from a failure to achieve diversity.  Whether the DE&I oversight function rests in human resources, legal, or elsewhere under a Chief Diversity Officer, law departments have a key role to play. They can track compliance with initiatives, measure progress, and identify business and legal risks that will arise from a failure to achieve diversity, equity and inclusion within the organization (as well as with business customers and partners). Playing this role requires measuring behavior. Without data about the organization's progress the legal department can't act proactively - it can only be reactive; taking action only when receiving a formal complaint or lawsuit. In today's world that's not nearly enough. 

In-house legal departments have started to focus on the also burning issue of improving matters within their own departments and in the law firms with which they work. One of the more interesting projects I've worked on recently is helping design systems to measure DE&I in outside counsel staffing, including understanding the details on how work gets distributed by those firms. Elevate has made great progress with select customers on measuring outside counsel DE&I.

But, the task facing law departments goes beyond just measuring outside counsel behavior. Law departments should look at the processes and systems being used through-out the organization to monitor and measure progress toward true fairness. What data is being collected? How is it being collected? Is progress being made? Is action being taken when the data shows a serious issue?

Achieving diversity, equity, and inclusion is finally an issue at the forefront of jobs to be done in today's corporate world. This brings opportunities, but also risks. The corporate legal function will play a significant role in making it happen, but they can only do that effectively if the business measures progress and the legal department understands how to work with that data.