In-House Counsel

Parsing Privilege: A Legal Department’s Role In Supporting #BlackLivesMatter

Despite what history would lead you to believe, this is not a Sisyphean task. We can roll this boulder up the mountain and park it there forever.

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Civil rights are appropriately top of mind these days.  As a result of recent events that have rightly gripped the nation, Slack, LinkedIn, Nextdoor, and dinner tables are facilitating discussions that were once relegated to academia and courtrooms. The fatal mistreatment of George Floyd at the hands of the Minneapolis Police, the tragic killing of Breonna Taylor in March by Kentucky police, and the attempted misuse of the police on a Central Park birdwatcher (Christian Cooper) by a bigoted New York dog owner are the most notable of recent racially motivated and racially impactful events that happen regularly in the United States and globally. These events, and the subject of racism generally, raises the question of what role we all play in mitigating discrimination within our homes, communities, and boardrooms.

It’s a topic I remember well from law school where, on the editorial board at the Journal of Race and Law, we dissected the remedies for hate crimes and tried to understand social justice within a legal system that skewed white.  But for me, my first memorable understanding of how race manifested in differential treatment occurred much earlier, as a young American child in Beijing. There, as one of a cadre of misfits attending the International School as offspring of diplomats — ourselves a scaled-down United Nations — we roamed our compound and passed the time roller-skating, riding elevators, and buying snacks from local stores. Between us, our cultural differences were many, but we were united by the drumbeat of boredom and rebellion.  But it quickly became obvious that the Chinese guards viewed things quite differently. Whether at our school, or within our residential areas, being black as many of my friends were, meant being singled out for blame. Regardless of their citizenship or nationality, being black meant being accused of a litany of offenses like broken windows and litter. It never made sense to me why.

As a result of the horrible crimes committed against people like George Floyd and Breonna Taylor, and the many who preceded them, we continue the conversation with our children that skin color may determine whether you survive or die at the hands of authority. There has never been an easier or more vital time to discuss civil rights with our families. The advent of social media, instant messaging, and the proliferation of video recording devices making it easier to capture events which were previously suppressed by oppressors, making bias transparent. Technology allows us to reach consensus on wrongdoing and injustice more globally, and more quickly, than could have been previously achieved through months or years of grassroot campaigning.

While hashtags and viral images are meaningful, and the messages behind them are indisputably powerful, there is nevertheless an unspoken worry among many — particularly when speaking on behalf of an organization — that if we say something incorrectly, we may not only damage the company, but ourselves as well.  Call it “analysis paralysis” or whatever you will — as lawyers, we tend to prioritize overthinking over action itself.

But among the lawyers who work within or lead legal departments at companies, and at law firms themselves, this is a sensitive but critical issue made even more complex during a time when budgets are being tightened and workforces are distracted by the realities of the coronavirus fallout.  Further to that, within companies that have allocated resources to diversity and inclusion initiatives, it’s an inflection point in which to be reminded of the consequences of failure to properly execute against objectives that might otherwise exist in name only.

Despite the complexity of navigating these matters, it’s both a privilege and an obligation that we get to lead these discussions and bring them front and center. Failing to thoughtfully and impactfully address these systemic failures is to be complicit in the problem itself.

So how do we advance the objectives of a movement that needs everyone’s help when everything is seemingly so messed up already? Companies that can afford to take a stance and have dollars or pro bono hours to put behind their efforts are to be lauded, but for start-up companies struggling to keep the lights on, monetary contributions or diversion of resources may not be feasible. But there are still a litany of other ways for us as legal practitioners to lean in to be part of the solution for institutional racism. While many more ideas will come to the surface, for those who have yet to begin, this can serve as a starting point.

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The California Association of Black Lawyers recommends some practical measures which resonated with me. Let’s, at a minimum, commit to these together:

  • Commit to honest conversations about race and racism in America in our homes, places of worship, and workplaces. We can no longer sit in polite silence while racism festers in plain sight.
  • Acknowledge that if you are not doing antiracist work, you are affirmatively allowing racism to persist.
  • Vote in every single election.
  • Via email, social media, phone calls, and at the ballot box, demand that the U.S. Justice Department, governors, mayors, police chiefs, and prosecutors mandate antiracism and de-escalation training, as well as zero-tolerance policies for all sworn peace officers.
  • Via email, social media, phone calls, and at the ballot box, demand that elected officials and policy makers develop and employ racial impact statements to ensure, prior to adoption and implementation, that laws and police protocols are designed and implemented in such a way that they eliminate rather than perpetuate racial inequities.
  • Continue to raise your voices to hold racist police officers accountable for their unlawful actions so that they are prosecuted fully. For example, if an officer is not doing antiracist work (e.g., removing a fellow officer’s knee from the neck of a suspect), then the officer must be held accountable for their complicity.
  • Boycott stores, brands, media outlets, and any other forum that depicts black males as threats merely because of the color of their skin.
  • Always honor the lives of the callously killed and continue to say their names, because Black Lives Matter.

Despite what history would lead you to believe, this is not a Sisyphean task. We can roll this boulder up the mountain and park it there forever. But this requires all of us, personally and organizationally, to fix our shoulders against the problem and push like our lives depend on it because, for many of us, they absolutely do.

Jennifer DeTrani is General Counsel and EVP of Nisos, a technology-enabled cybersecurity firm.  She co-founded a secure messaging platform, Wickr, where she served as General Counsel.  You can connect with Jennifer on Wickr (dtrain), LinkedIn or by email at dtrain@nisos.com.

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