Having a diverse team brings different points of view to the table where a specific solution or point is raised because of the unique perspective of an individual based on their life experience and identity. I have been in situations where someone raised a point that was within my blind spot, and without which the group would not have reached its ultimate decision. I also believe that diverse teams have the ability to be more creative and innovative in their way of thinking leading to better decision making overall.
A diverse team also tends to share more and therefore tends to be more involved and more engaged. Better engagement results in teams with strong talent retention. Beyond being good for performance, it also results in a better work environment, better culture, happier employees and gives you more access to a better talent pool – it’s a good cycle to be in.
Another key aspect to the importance of diversity is when it comes to leadership positions. When younger diverse talent sees people who reflect their own diversity in leadership, they see people that they can identify with and feel more represented and willing to stay for longer in an organization. For example, if you are a woman and see other women in leadership positions, I think there is a sense that you can trust that your own perspectives will be better represented because similar life experiences create an empathy.
Beyond gender, I think the importance of representation goes for all traditionally underrepresented groups. If you have people in leadership positions with different identities, backgrounds, etc., it creates a greater sense of trust that anyone that works hard can succeed, regardless of their background. In addition, this trust become cyclical because once you succeed you want to stay and help lift up those who are coming up behind you. All of this creates a better environment, group of talent and overall performance, as studies have shown.
When it comes to how we serve our clients, having diverse teams is also incredibly important because studies show that diverse teams consistently outperform teams that lack diversity. It is also critical that we are able to demonstrate value alignment with our clients when it comes to fostering an inclusive culture. Many clients are demonstrating that diversity is a top priority. Therefore, law firms that in the best case scenario are seen as extensions of that in-house team, must be able to further reinforce that.
I love the way the DEI team at Johnson and Johnson puts it: you belong. I love it because it’s about feeling comfortable to bring your true self to work.
It’s indispensable to have everybody’s point of view – if you have customers, patients and stakeholders all over the world, it’s important to have a wide variety of people inside the Company.
But, in addition to that, I think when you’re comfortable being yourself, you’re more creative. You feel better about raising your hand and shouting out your ideas and about participating. I also think when you’re comfortable being yourself, you’re better engaged.
Getting the culture right
We always think about our law department culture as one of camaraderie. We get invited to speak, with colleagues from other countries, about the future of our law department and how to make it better, and we’re always focused on making sure that, even as our department has grown over the years, we keep that camaraderie culture. I think we’re succeeding in that process, and I think that’s a very good grounding for DEI.
We have periodic training on different topics, for example, on unconscious bias, on building trust, and on many subjects related to DEI.
We also have Employee Resource Groups – we have groups that champion women, we have the ‘open and out’ group, which is a group that supports the LGBTQIA+ community, and we recently launched a group in Colombia that is supportive of indigenous communities.
We have been learning from the US team, which has been very active in examining racial inequality and social injustice; we’ve had book-clubs, we’ve had movie discussions, we’ve had experts come to talk to us.
Something that we had recently, that I thought was incredible, were some talks by experts on menopause, which is something that is part of being a woman, but we sometimes take it for granted. We are taught about giving birth, about being a mother, and about many things, but not about something that is so inherent to our lives as menopause. That, I think, is how inclusive our law department is.
Living DEI day-to-day
In the law department at Johnson & Johnson, one of the members of the leadership team of our general counsel is always responsible for DEI, and at the regional levels we also have leaders of DEI initiatives and DEI committees. We have some programs and initiatives that are global, and others that are regional. DEI is part of our strategic planning in the law department, and people report on our DEI efforts regularly.
We have some global objectives that we have to complete within the year – so there is some training we have to complete, we have to make sure that our goals include DEI goals, and in our conversations with our leaders, we report on how we met or did not meet those goals. But we also have a DEI committee at the regional level and, at the LatAm law department, we have our own strategic planning that we have to present to the global council. We report to them at least every quarter, and tell them how we’re doing, what we’ve finished, what we didn’t, and whether we completed our plan or not.
I think our law department leaders have made the law department really live DEI; it’s not something to check the box, but it’s really in our way of thinking.
Appreciating difference
I had a chance to lead the law department DEI group for Latin America a couple of years ago. We wanted to make sure that we respected everybody’s holidays, so we made a calendar to make sure that no regional meetings were ever scheduled during special holidays for different people in the group.
We tend to all speak Spanish in the meetings and leave our colleagues in Brazil on the side, so we tried to work on that by balancing the meetings – having some parts in Portuguese and some parts in Spanish. We even shared some glossaries of words in both languages, so we could all feel more comfortable.
We had an initiative called ‘beyond the label’, where with each LatAm law department newsletter, we got to know one of our colleagues – so, for example, someone might be the IP lawyer, but they are also interested in wildlife conservation and had a chance to live in Africa in an elephant nursery. We’ve had things like that, to connect at another
level.
It might not be rocket science, but these are things that keep us on our toes and thinking about how we’re different.
The importance of listening
On a personal level, I think being constantly reminded of the importance of listening is key in DEI. Lawyers are used to talking a lot and, in a way, we may not be so good at listening. I think the best way to make sure that everybody feels welcome, and that we hear everyone’s voice, is if we learn to listen.
I think legal strategies benefit greatly from other points of view, so I always discuss the important strategies with the business, with our marketing director, with our general manager, and I think that’s also inclusion. And that comes together with leaving aside the legal language – I like to think of myself like a translator, translating legal language into business language.
GC: Alejandra, how would you describe what diversity and inclusion mean to you? Why are they important for the corporate landscape?
Alejandra Bogantes (AB): In an organization, they are very important, because we need to make people feel comfortable.
If you accept them and let them be who they are, you are going to have employees that want to work with you. If you defend them and respect them, they are going to respect the company, and try to accomplish our goals and our vision and mission.
GC: How would you characterize the diversity and inclusion culture at Walmart?
Bob López (BL): To give you the background on this approach, we have core values for the company. One of these core values is respect for the individual in regard to differences – differences in mindset, background, education and so on.
But we also have an ‘Associate Value Proposition’ (AVP), which has five different pillars. The first one is purpose, the second is challenge, the third one is opportunity, the next is enjoyment, and the last (but not least!) is inclusion. For us, it’s really important to be an inclusive company, and that’s why we made the decision to include this pillar as part of the AVP, both internally and externally.
At this point, we’re focusing our efforts on four different approaches for the company: gender equity; people with disabilities; the LGBTQIA+ community; and the non-discrimination pillar, which is the newest one, and is working towards eliminating those barriers when it comes to talking about race, for instance.
For the company, it’s really important, and it’s part of the business strategy. We have goals to reach, we have KPIs for the company, so we are putting together all of these different thoughts within the company.
We also have a diversity, equity and inclusion council. This is a group of business leaders that are working towards an inclusive workplace for everyone within Walmart. This is not like the typical HR team working for inclusion, it’s more about the business leaders working for inclusion for the company, and they are bringing their expertise, they are bringing their ideas, and they are the ones that are writing this change. They know the business very well, they know very well the pain points that we may have in the stores, in the distribution centres, or in the home offices, and they are putting in place an action plan towards a more inclusive environment in Walmart.
In addition, one of the key actions that we have implemented since last year is to partner with external organizations outside Walmart, so we can bring their expertise within the company, and make better decisions for our associates in every pillar.
GC: It’s interesting that you mention KPIs, because it’s that sense of ‘what gets measured gets done’. How do the KPIs work; what does that look like day-to-day?
BL: We have different KPIs in regard to gender equity, and with regard to talent with disabilities. We have a work engagement survey, and last year we included a voluntary self-ID for the LGBTQIA+ community and for people with disabilities. That way, they could give us their responses and we could assess how they feel working for Walmart and with that information we have created different action plans to improve the work environment for these groups. This is also the first year that Walmart México and Central America has included a self-ID for race, because we wanted to know if we had racial diversity within the company, and how we can leverage people’s working experience within Walmart.
GC: How is the legal team supporting the company in its diversity and inclusion efforts? How does the team fit into that structure?
AB: As a legal department, we are an example and a role model for the company. We have to always act correctly – and not only look like we are acting correctly. We have to make sure the company complies with its policies and complies with the law. We help HR and the committees when they have any kind of question. We support area staff operations too, to make sure that they can explain what we are doing – we know that there are a lot of people that have prejudice and we try to make people understand. For example, we sometimes have cases where customers don’t want to go to a certain cashier because he has long hair, or tattoos, and we as a legal department have to tell them, “well, he has the right to look how he wants – we don’t have policies about how you look at work”. We have to support our employees and make them feel safe and protected by us, and we as a legal department promote a lot of efforts to make people feel comfortable.
In our legal department, we have a lot of people of different ages, some of them have kids, some of them are single parents, some of them have different sexual orientations, and we try to make the team feel completely united. We are very close, and we try to let people know that one of our values is that we are a diverse group, and we have different ideas. For example, the younger ones sometimes promote ideas about tech systems that can work for us to make things simple, and you know that people, when we are older, we sometimes don’t understand how things are going to work. So, I think that we make a really good balance.
We follow the company’s policies, and in case someone doesn’t feel respected or supported, the company has an ethics department, where people can file a complaint and they will investigate to make sure that the legal department, like everyone in the company, is compliant with the policies, and with our ethics code of conduct.
We have an open-door policy, so that everybody can go to their boss, or the boss of their boss, or the CEO of the company, to explain their concerns, and they have to listen to them. They don’t have to be afraid of retaliation, because they are allowed to express what is concerning them.
GC: Do you think that in-house legal teams have an important role to play in driving D&I? How do you think in-house legal teams can contribute to that conversation?
AB: As a legal department, people are looking to us. If the legal department is doing something incorrect or is not promoting diversity and inclusion, people are going to think that they can act in the same way. The risk is that if the legal department is not compliant with company policies, people are going to consider that that is ok, because we establish what is good or not, or what is correct in accordance with the law.
Also, the legal department has a section in our engagement letter to external lawyers where we request them to promote diversity and inclusion in their firms. For us, it’s very important that our external lawyers share our values; that they try to make a difference in society.
I think that Walmart is really working to make a difference in terms of diversity and inclusion. We are a big employer in Mexico and Central America, and the company is really trying to invest in helping people to understand what diversity and inclusion is. If our employees understand, they are going to start making a change in society, they are going to make that change with our clients, and we are, I think, contributing a little bit to making a difference.
BL: Being one of the largest companies within the region, we truly believe we can make an impact because of the cascading effect that we may have across society.
I’m going to try to say this as simply as possible: we have more women in the world, and women live longer. We have a group of people living longer without the financial resources to live well. If you consider that women don’t have a way to pursue a profession or financial independence, that economic model is not sustainable.
Of course, I could go to the UN and bring the numbers – ‘We can bring three trillion dollars into the economy if we achieve gender equity.’ But you should think of this in simpler terms: if you want to have people purchasing, living and having financial independence, you need to have everyone in the work environment.
The same arguments apply to people with disabilities, transgender people, LGBTQIA+ people and racially diverse people. We need to have everybody working; we need to have everybody pursuing financial independence. That’s the only way we can have everybody an the same table; everybody with the same resources for housing, health and education. If you take these people out, you’re going to have a huge gap in the future. We need to make it feasible for everybody to be able to work.
Access to education
Today, we have a lot of women in Latin America who are able to get into university to reach the legal profession. However, when you climb the pyramid to pursue higher positions, there is still a gap.
We still have a lot of red and yellow flags regarding children and girls. We have menstrual poverty, we have a lack of education. I think we are doing a good job with established women: we have young lawyers, we have a lot of mentorship, we have done a lot to address the women that are already in the workforce – those who have graduated from law school, graduated from engineering school, for example – and we are organizing a lot to help these women to grow.
But I feel there is a gap in terms of how we are helping all children, all girls, to achieve this step, and to really achieve a high-quality education. In Latin America, you have a lot of women who are able to go to school in the large urban areas. But if you move to the countryside, to the farms, to the less developed cities – oh my god! The girls share their time between housework, family work and also school. They don’t have access to proper places to clean themselves, proper places to study. I think it’s something we need to really think about. We are doing a good job with the women who are able to achieve education but what are we doing for the kids who do not have the same access to education?
Creating the conditions
Rock Content is a Saas Company in digital marketing, and we have this fun start-up environment. There are a lot of young people, and I have to say they have a different view about diversity and inclusion – they see that it is natural.
We have a leader for diversity and inclusion, and we are starting to have a lot of conversations and policies to raise awareness for the company about every aspect of diversity.
We have a lot of allies, to help diverse representatives. One of our goals at this moment is to bring in more people with disabilities.
We have also been thinking a lot about education. We have two main initiatives. One is led by the social impact area of the company, and we give scholarships. The other is that we are about to become a member of ‘Pledge 1%’, an initiative to commit 1% of our equity and employees’ time to educational initiatives.
An incredible journey
Rock Content is a really different environment from much of my career. My click with diversity and inclusion started around 2011 when I first achieved the GC position, and I was the only woman at the table. At that time, I was in the insurance sector, a market where I worked for 12 years, and an environment that, in Brazil, is very masculine and non-diverse.
I said, ‘I don’t want to be the only woman at the table, I don’t want to work in an environment that doesn’t see diversity as part of the strategy.’ So that’s when I started to take some actions and become an advocate for diversity and inclusion. I went to Harvard to attend the Women’s Leadership Forum, and I created a workshop for women in my company. After that, together with two other female GCs in the insurance sector, we created a task force in the Brazilian Insurance Confederation. In 2018, we founded a diversity and inclusion institute for the insurance market in Brazil. So that was the beginning of an incredible journey – we saw a lot of impact from what we started in the market.
Today, if you go to insurance companies in Brazil, all of them have some consideration for, or policy, initiative or target for diversity and inclusion. We see a lot of changes, not only as individual companies, but also as a sector.
Giving opportunities
At Rock Content, I’m a super ally for diversity and inclusion. I’m not only supporting the aspects of it, but also to make it visible, to start to help to drive policies and procedures, to have a diversity and inclusion framework that can also incorporate and embrace the company as a whole. I’ve been working really hard with our leader in diversity and inclusion, and also the head of education and the head of social impact, in order to really make sure that our environment is really inclusive.
One of the initiatives is around people with disabilities, so at this moment we have a lot of lectures and information-sharing regarding that. In September, we had a huge presentation for the whole company to help everyone understand not only the importance of employing people with disabilities, but also how we can embrace this.
We have initiatives like ‘Women Rocks’, ‘Inclusion Matters’. One of the pillars of our business is ‘Rock University’, and we give a lot of lectures, courses and we provide scholarships to low-income families to be able to attend the courses.
Within the legal team, I always pursue people with disabilities, women, and minor representation. I don’t like to say ‘minority’; I like to say ‘minor representation’.
At this moment, I’m hiring, and when they published the vacant position, I asked for somebody with a disability. It’s not only about walking the talk, it’s something that l believe: I need to give opportunity. Our company language is English, it’s our first language globally, even in Brazil. As a legal-compliance department, English is almost crucial. I know that hiring a person within minor representation groups with English knowledge is going to be challenging. But I decided, you know what? Let’s try to find somebody. Even with basic or intermediate English; we are going to develop this individual and provide support to grow as a professional.
A healthy workplace
Motherhood is part of our world, and in every team I have led, I’m always an advocate for parental leave, not only for women but also for men. At Rock Content, it was one of the goals for our CEO and so what we have today is a ‘family’ leave policy. Men and women across the globe have the same amount of leave, so we’re not talking about different policies for men and women. We are talking about four full months for everyone who becomes a mother or father. That’s why we call it family leave. And we give flexible hours too.
Among the other policies that we have established, especially in the current remote-working environment, is ensuring that work breaks will be respected. Lunch hours need to be respected too. No emails at night. These initiatives are crucial for a healthy environment.
In law, our foundational base is human rights – as lawyers, we are trained to observe human rights, and with diversity and inclusion, we are talking about fundamental human rights. It’s the right to have access to employment, to healthcare, education, to have a house. So as lawyers who work in enterprises, we make sure that we are complying with human rights, with labor laws, and make sure that we have equity. As lawyers we really have the tools to make this happen – to create healthy workplaces.
Since speaking to GC, Ana Paula de Almeida Santos has left Rock Content to become general counsel, head of legal and compliance at Argo Insurance in Brazil.
It is a fact that the hiring process is often dogged by bias. Of course, hiring managers do not reject applications from minority candidates, but unconscious biases have been shown time and again to skew hiring decisions.
Diverse applicants are acutely aware of the risks.
‘Back in the early 2000s, I found that it was very easy to identify who diverse candidates were’, says Phyllis Harris, general counsel, chief compliance, ethics and government relations officer, at the American Red Cross.
‘You could pick it up from a school, a name, you might pick it up from the organization. What is interesting is that, over time, I have seen a 180° whitewashing in résumés. There are candidates out there that believe that they are not going to get an opportunity to interview if someone can readily identify their racial make-up and their racial identity. I know people who have gone as far as changing their first name because they did not want to stand out.’
‘We like to talk about inauthenticity. How inauthentic are you if you have to make a conscious decision to say this résumé cannot in any way reflect that I am African American or that I am native American? You are going into a workplace and, on the very first day, you are not comfortable in being yourself.’
But what if you could remove bias from the hiring process? Some claim that you can.
Automated hiring introduces technologies such as artificial intelligence (AI) and machine learning (ML) into the recruitment process, helping to pre-screen résumés that do not meet requirements. In some cases, these tools are now being used to eliminate the need for a human interviewer to interact with prospective new hires. If the process is less human, there will be less scope for human preconceptions to overlook the best talent. Right?
Not according to Ifeoma Ajunwa, associate professor of Law at UNC School of Law, and founding director of the school’s artificial intelligence and decision-making research program. She has seen workplaces embrace algorithm-based technologies for convenience and cost-savings in the recruitment process – as well as in other areas such as training, safety or productivity monitoring and surveillance – filtering out high volumes of applicants, even in white-collar roles. But she has grave misgivings about its potential for discrimination.
‘Automated hiring is seen by a lot of white shoe firms and big companies as an anti-bias intervention. A lot of these firms are turning to automated hiring in good will, with good intentions – they think it’s a way to ameliorate the bias of hiring,’ she explains.
‘The problem, however, is that because hiring platforms are not well regulated, the reality is that they are in fact replicating the bias that already exists and they could actually be exacerbating it. If you have a flaw in an automated hiring system, that flaw is prone to be replicated a million times, versus when you have one biased manager.’
Disparate impact
The problem is that of disparate impact – apparently neutral processes whose outcomes are nevertheless harmful – where a butterfly-wing beat of inattention, ignorance or worse, can set off a tornado of exclusion.
Ajunwa gives the example of video interviewing platforms that use algorithms to measure variables like eye contact or syntax, potentially impacting candidates with autism or deafness, she says.
Closer to home, she describes the case of a former student, a computer science PhD postgrad who was rejected by a major company. On meeting with a company representative at a job fair, it became clear that her skills were perfect for the organization, and, in surprise, the representative investigated. It transpired that an automated program had screened out applicants with a BA in computer science, in favour of those with a BS.
‘It’s not really a meaningful difference. But then you also have to think about, could this have other disparate impacts? Who’s more likely to get a BA in computer science versus a BS? Could this actually have bigger disparate impacts than we know?’ she says.
‘There won’t always be quick fixes.’
Where the puck is going
Ajunwa believes that such consequential decisions being left to technology merits legal attention – and she pinpoints in-house lawyers as playing a potentially significant role in such scrutiny.
‘I think in-house lawyers are particularly at the forefront of the scene, because some of them may be general counsels advising clients on what sort of hiring programs to put in place. So they do need to be aware of these issues with automated hiring because many vendors will be trying to sell automated hiring programs to large firms, and there really is the duty of these general counsels to ensure that the client isn’t taking on a program that is going to be more of a liability than a help,’ she says.
‘At the bottom line, there’s a huge liability if companies get these issues wrong. There’s an important legal liability,’ adds Nuala O’Connor, senior vice president and chief counsel, Digital Citizenship at Walmart.
The extent of the exposure to that liability won’t be evident until the process is run, and the output – potentially reflective of biases along racial, ethnic, national origin and other discriminatory lines – there for all to see. But that’s the baseline, says O’Connor.
‘I’ve always believed that the role of in-house counsel is not just to say what the law is, but to lift up the company and say, “This is what the right thing is”. The role of the savvy in-house counsel when dealing with emerging technology is a little like the ice hockey saying – you’re looking where the puck is going, not where the puck is. This is where the puck is going. Increased use of technology, increased use of data, increased scrutiny. Increased scrutiny of the values,’ she explains.
‘Just as companies are being scrutinized for the values they espouse and having to take positions on controversial social issues, the technology and the data uses of the company are going to be scrutinized for the values inherent in those programs, policies, processes. I think that the smart lawyer and the smart counselor inside is looking at: “what have we built? How is it working, how is it functioning?” This is the digital architecture of a company, just like the four walls of a store are the physical architecture of our company, and it demands as much scrutiny.’
Joining the dots: technology, law and discrimination
Lauren Krapf, technology policy and advocacy counsel at the ADL, and counsel for its Center for Technology and Society, discusses her work combating identity-based hate online
We know digital discrimination really impacts individuals, especially when it comes to their identity and, specifically, race and ethnicity. Algorithmic bias exists in our digital financial systems, employment systems, and other systems. It tends to mirror the discrimination that individuals experience offline when it comes to disparate impact and harm to marginalized communities. This manifests specifically for race and ethnicity, but also for religious minorities, for the LGBTQIA+ community and other targeted populations. ADL has spent a lot of our time and focus on online identity-based harassment and hate that is seeded through social media and other digital mechanisms. In addition to working to protect targets of identity-based online harassment, ADL’s tech policy work focuses on platform accountability.
In 2017, ADL launched our Center for Technology and Society (CTS), where we have housed experts who focus on research related to hate online and identity-based harassment. CTS works with, and pushes back against, social media platforms in light of the role they play in magnifying hate, extremism, racism and harassment. We have policy experts and engineers building tools to measure hate online and its impact.
AT ADL, we research the ways hate and extremism, white supremacy, and harassment manifest in digital spaces, and then engage in advocacy so policymakers and lawmakers can help develop sustainable and meaningful solutions to mitigate the harms that exist.
My portfolio includes supporting ADL’s initiatives from a legal and analytical perspective: what are the legislative and regulatory solutions being proposed? Can these solutions make a positive impact? What are unintended consequences? Can these proposals be improved?
We’re looking to case law, to precedent, and understanding what language is necessary to update the gaps and loopholes in the law, talking to victims and targets about the struggles they’ve had and their ability – or inability – to bring cases forward, talking to other legal experts about their theories of change.
When it comes to supporting targets of online harassment, through ADL’s Backspace Hate campaign, we’ve worked with law makers in several states to introduce anti-doxing laws, to update cyber harassment laws or cyber stalking laws, and to introduce swatting laws, because in many states these laws are out of date or don’t exist at all.
When it comes to holding tech platforms accountable for their role in amplifying hate, racism and extremism, ADL is fighting for meaningful internet reform. We are seeing the magnification of hate and the normalization of racism on social media at unprecedented levels and know that tech platforms can do more to stop the proliferation of these harms. ADL believes Section 230 [of the Communications Decency Act, which prevents platforms being liable for content posted by third parties] needs to be reformed. But we know that is just one piece to the puzzle. ADL’s REPAIR Plan lays out the different components to pushing hate and extremism back to the fringes of the digital world. This includes things like changing the incentive structures for Big Tech’s toxic business model, increasing transparency and accountability for platforms, and advocating for targets of online hate.
I think these really important questions of our time are rooted in a mix of tech expertise, law, human stories and impact, and so I feel grateful that I get to put the puzzle pieces together, and assist when ADL supports a piece of legislation, or works directly with law makers to champion work, or when we talk to our community members and leaders about what they can do. And really just having conversations in communities and raising awareness.
ADL also works directly with law firms that support our impact work. They help us our policy and civil rights teams with amicus briefs as well as other research projects. As we look to what’s next, or as we look to deeper understand nuances within some of the issues, la firms can provide meaningful assistance. We’re lucky to have a network of dedicated lawyers, law firms and stakeholders to lean in and support the work that we’re doing.
I think it would be great for general counsel and other inhouse-lawyers to find more ways to work with civil society. There’s no one-size-fits all piece to the puzzle. As for tech policy reform, we are asking serious questions about the best way to regulate the tech industry: business structures, antitrust reform, privacy regulation, liability, whistle blower protections, etc. There’s not one single way to fix the internet. It’s not just rooted in the outward-facing policies of tech companies, or the laws that are moving through the legislature. I think that we can really develop creative solutions when partners who have different skillsets, that can look at issues from their lens, get involved.
Lisa LeCointe-Cephas, chief ethics and compliance officer at Merck International, has not worked with automated HR systems, but she is conscious of her responsibility to consider where bias might hide in processes and tools.
‘Last week I took one of our new diversity, equity and inclusion trainings from the perspective of a black woman – “How does this read for me?” I’m very vocal about providing feedback on that, because I do think that a lot of the things that we’re building to help us, at times, can actually have biases built into them.’
She believes this awareness should also be applied to potential algorithmic bias within automated tools.
‘I’m fascinated by a lot of that work. There are these new platforms that allow you to say, “You know what? Bob is great. We want to get another Bob. And so, what are the characteristics of Bob that allow us to get another person who will be just successful?” I do worry that a lot of those things have inherent biases built into them,’ she says.
But Ajunwa feels that many in-house lawyers are not truly cognizant of the risks.
‘I think, frankly, that maybe in-house lawyers are just not as technologically astute or as technologically attuned to the nuances of how a lot of automated tools work – such that automated tools that might seem innocuous or that might be neutral could, for example, still have proxy variables that they are using, which are making them ultimately unlawfully discriminatory,’ she explains.
Digital ethics and the law
At Walmart, O’Connor is one of a growing band of corporate counsel looking at the intersection between ethics and the evolving digital ecosystem inside companies. Former president and CEO of civil liberties non-profit the Center for Democracy and Technology, O’Connor now heads up a new function called ‘Digital Citizenship’, which includes lawyers, compliance and policy professionals, as well as technologists and data architects. The organization also includes a program team called ‘Digital Values’, specifically tasked with scrutinizing values embedded in AI and ML.
Legal and digital ethics skills are increasingly at a premium, she says, putting the field in the context of mounting regulatory and corporate attention being paid to technology and data practices.
‘I do think it’s a growing field. It’s looking at technology through that civil liberties lens and through that fairness lens and being a lawyer who can help do that, I think is going to be an incredibly valuable skill,’ she says.
‘We talk a lot about the role of privacy, and I sometimes cringe a little bit because I don’t think it’s just privacy anymore. Data protection is necessary but not sufficient. It’s got to be secure; it’s got to be safe, it’s got to be held to the standards and promises that were made when the data was collected. But the use of that data has also got to be fair, it’s got to be transparent, it’s got to be accountable.’
So, how can companies distinguish between platforms selling what O’Connor terms ‘digital snake oil’ and genuinely helpful tools? And how can they make sure that genuinely helpful technologies do not amplify bias and exclusion?
Authentic auditing
For Ajunwa, the answer is auditing – an ongoing, authentic process, where disparate impacts are not only identified, but corrected. And she believes it should fall to general counsel to ensure that appropriate professionals are hired.
‘Ultimately, if there is an issue of discrimination, the employer is still responsible. The mere fact of delegating hiring to automated hiring platforms does not remove the legal responsibility to refrain from employment discrimination,’ she warns.
Some employers are sitting up and tackling the risks. In December 2021, the Data & Trust Alliance – a non-profit global consortium of leading businesses formed in September 2020 – announced a set of criteria to mitigate data and algorithmic bias in HR and workforce decisions. In recognition of the risks inherent in its members’ increased application of data, algorithms and AI in the search for talent, these ‘Algorithmic Bias Safeguards’ are intended to help companies assess vendors on criteria such as training data and model designs, bias testing methods and bias remediation, among others. They will be used by companies like American Express, CVS Health and Walmart.
O’Connor has been closely involved, since the Alliance knocked on her door to leverage the skills of her team.
‘It really was a top-down, CEO to CEO conversation that these companies are waking up to the realization they have a lot of information and data about people, they wanted to do good things with it, better things than I think the public perception is of what the amalgamation of data could mean for their personal lives,’ she says.
‘Most importantly, this is not just: “let’s put up a page of principles on the wall and it’s all good.” We’ve all done that as companies already; that’s a baseline. This is: “how do we implement? How do we operationalize? What are the questions we have to ask our vendors? What are the processes we should put in place?”’
O’Connor co-chairs the Alliance’s algorithmic decision-making in HR working group, which met weekly to consider how automated HR tools should be evaluated for bias and implemented across the HR, procurement and IT departments. The safeguards are the culmination of that project, including checklists for vendors, anti-bias diagnostic tools and metrics for outcomes.
‘Here are all the values, here are the ways you should be scrutinizing your tools, here are the places in the company that these tools might be implemented, whether that’s in hiring of new people, or an area I think that’s overlooked is advancement and promotion – who are we looking at when we’re creating new jobs or promoting people and who is getting to go on learning opportunities?’ she explains.
Joining the dots: technology, law and discrimination
Mika Shah, co-acting general counsel of Mozilla, describes the company’s push for transparency to combat discrimination in the digital adsphere, and how the legal team supports that work
When a company advertises online, they can choose the targeting parameters – the interests, demographics, and behavior – of their potential audience. Advertising platforms often have extremely granular targeting options and, although this can be useful in some situations to find audiences who would be interested in the topic or product, it can also easily be used to discriminate against certain segments of society.
Some examples of the former may be culturally specific products or events – some people might find value from this, whereas others would find it creepy, but not necessarily harmful. By contrast, harmful discrimination through advertising is happening today, although experts are less certain about how ubiquitous the practice is and how much harm it does to individuals and groups. Examples of harmful discrimination online include sending digital reminders of private and traumatizing experiences, engaging in voter manipulation, provoking actual conflict, targeting certain genders in hiring, excluding certain races or households from housing opportunities, and so forth.
The regulatory environment to prevent online discrimination and harm is dated. There are laws in the US and other countries to prevent certain types of discrimination, but they do not address these types of digital practices and the harms that result.
That is why Mozilla advocates for stronger transparency requirements by advertising platforms. This is an opaque space in which platforms hold the relevant information. Without this, we can’t have meaningful public discourse on how to prevent digital discrimination and harm. Mozilla also advocates for safe harbors and protections for researchers and journalists studying discrimination and harm online. This is critical to enable a better understanding of what practices are having discrimination impacts, and the nature of those impacts. It is a key step to better empower regulators to take action.
On the other side of the debate around platform transparency is how advertisers should behave. Many companies engage in routine advertising and they may be engaging in practices that seem to be ‘permissible’ but may in fact be discriminatory. As the regulatory environment evolves, legal teams should proactively ensure that their targeting and data practices can withstand regulatory and consumer scrutiny. This includes going beyond the letter of the law, especially when laws don’t yet exist, to also consider whether a company’s practices are in line with brand values and public trust.
We’re encouraged by recent Congressional proposals on ad transparency and researcher access. A meaningful solution to enable transparency includes the entire toolkit: universal ad transparency, safe harbor for researchers and journalists, and disclosure of high engagement data. Of course, we must carefully craft these rules in a manner that preserves privacy protections. We’ll continue to advocate alongside civil society and academia for thoughtful and effective policy approaches and encourage governments to act worldwide.
Beyond our public policy work, we also have great products that we wish for everyone to know about. That means we can’t ignore advertising either. We’ve gone from pulling our advertising from Facebook to returning, with build-in transparency into the process ourselves. Our legal team approaches this issue from every angle and collaborates with our internal business partners to understand challenges and implement solutions in line with our values. In this way, legal teams are an important stakeholder to helping companies navigate beyond what the law ‘requires’ (or doesn’t) to what is also the right thing to do for consumers and society.
‘It can be as granular as: let’s look at the code and see what it does, or as general as: here are five questions you should ask your vendor. And I think it’s tailorable to small, medium and large enterprises.’
O’Connor describes other Alliance projects – one on the use of data and technology in M&A due diligence, to look at how data and technology assets are considered in the acquisition or divestiture of companies, as well as the transfer of privacy policies and commitment when entities change form.
Another studies responsible personalization, examining the values input into tailored online experiences, and the values behind the exposure of people to advertisements for products as diverse as clothing, mortgage loans or educational opportunities.
For companies able to successfully audit and uncover bias and unlawful discrimination, says Ajunwa, perhaps the stickier question is how to go about correcting it.
‘Sometimes you might think you’re using variables that are quite important for the job description or for your industry, but those factors or variables may perhaps have historically racial bias baked in,’ she says.
‘That then becomes a bigger conversation on how you disentangle variables that are widely used in your industry from racial bias.’
For O’Connor, that conversation has to prize humanity above isolated attributes: ‘It’s not just the data, it’s the decision. What is the judgment that you are applying to a human being and is that fair, is that honouring their full humanity, or is that diminishing them to some kind of stereotype or corner of the universe? I’m a believer that technology can be used to open people’s minds and horizons, but we do need to scrutinize it to make sure that’s actually what’s happening.’
Regulation
Whatever the conversations happening in-house, Ajunwa argues that auditing should also come from outside – from interventions by government agencies like the Federal Trade Commission (FTC) and the Equal Employment Opportunity Commission (EEOC).
At the state level, interest is growing and December 2021 saw a bill regulating the use of AI by employers become law in New York City, effective from January 2023. The bill requires companies to conduct a bias audit on automated employment decision tools, to notify candidates living in the city that such a tool will be used and which qualifications and characteristics it will assess, and provide the opportunity to request an alternative process.
At the federal level, the EEOC announced the launch of an initiative to ensure that AI and other hiring and employment decision-making tech tools do not discriminate unlawfully in October last year.
‘My greatest wish is for governmental agencies to really take more charge of regulating this arena of automated decision-making,’ says Ajunwa.
For now, the EEOC plans to prepare technical assistance to provide guidance on algorithmic fairness and AI use in employment decisions. But, Ajunwa believes that judicious use of similar technology could actually assist in the process of creating and enforcing regulation.
‘I think they can do it by actually deploying some automated decision-making tools themselves. The EEOC could use automated decision-making tools to search for disparate impacts from automated hiring platforms or other online platforms. The FTC, which is in charge of the Fair Credit Reporting Act, could actually use that to ensure applicants get more information about their online applications – basically they can use it to reverse the current informational asymmetry between employees and employers when it comes to automated hiring.’
Stepping out of the silo
For data ethics to exist outside of a vacuum, and for any efforts at mitigating bias and disparate impacts in automated employment decision-making to succeed, they must be part of a collaborative effort, says Ajunwa.
‘There is this siloed effect, where you have ethics organizations off to the side writing papers, doing research, and then you have corporations also off to the side, and there’s not really enough conversation between the two,’ she says.
She hopes that more corporations will collaborate with leading edge social and computer science researchers and legal scholars in evaluating their programs and flagging issues.
‘I know of companies using what they claim is research to create automated hiring programs, but it’s research from the 1960s. Yeah, sure it’s research, but I can guarantee you how dated, probably racially and gender biased, and so on that will be,’ she says.
The Data & Trust Alliance has also taken a multi-disciplinary approach: O’Connor’s working group brings together professionals from the fields of law, technology, procurement and diversity. The resulting algorithmic bias vendor evaluation criteria were developed by a coalition of member companies, with input from vendors, business, academia and civil society.
At UNC Law School, Ajunwa has worked to broaden the skillset of lawyers themselves, founding the Artificial Intelligence and Decision-Making Research Program in recognition of the need for a new generation of lawyers to understand not only the nuances of the law, but also the capabilities and potential of emerging technology – and what legal issues could arise.
To ensure the message is reaching employers, Ajunwa also sits on a technology advisory council for a Fortune 500 company, providing expert ethical opinion and advice on products and relationships.
‘Currently our model of dealing with discrimination in the United States is flawed. We have a litigation paradigm where you are basically putting out fires after they’ve already started. I think general counsels should counsel their corporations to rethink that model and not wait until they are faced with litigation to address potential issues,’ she says.
‘Instead of waiting to get a lawsuit and then scrambling to defend themselves, maybe they should have advisory councils already in place so that they can get concrete and useful advice as they are conceiving and rolling out products and entering into relationships with other corporations or entities such as governments. A tech advisory council is useful for that and can actually spot issues before they start – they can spot hotspots before they turn into a full-blown fire.’
Latin America is a diverse region, with over 660 million people of various ethnic groups and ancestries: Amerindians, white, mestizos, African descendants, Europeans, among others. It is essential to all companies and their workforces to continuously reinforce the need for diversity and inclusion in their work environments and, most importantly, in the Latin American boards and senior management positions, which data indicates are more than 90% occupied by men, mostly from a similar ethnic group. Diverse groups have raised their voices to increase awareness and fight for their rights and needs in the last 20 years.
However, with the ‘new’ diverse groups, such as LGBTQIA+ groups, you see very different positions. In larger cities, such as São Paulo (Brazil), Mexico City (Mexico), Buenos Aires (Argentina), Santiago (Chile), Bogotá (Colombia) and Lima (Peru), you have more respect and more protection of such rights. However, if you go less than 100 kilometres into the interior of these countries, that situation changes significantly, and people are much more provincial and less open. While governments have passed laws accepting various rights for these groups that were long awaited (such as same sex marriage), and principal media channels have supported many of those changes, there is still a big divide amongst those in society that live in the large city centres and the populations of more remote interior areas.
Historically, legal professionals were quite reserved about the topic of diversity and inclusion. In the last five years, this has changed very positively. Law firms are openly promoting diversity and a free environment. This change was supported by the new generation of lawyers, who wanted to see those values and principles embraced and actually lived in the work environment, whether in-house or in a law firm. Law firms had to rethink their standards of what they were looking for in a lawyer. Most law firms, now more than ever, know the true value of having lawyers and paralegals with different backgrounds, and even different qualifications and experiences, that bring new ideas to the legal solutions and advice provided to their clients.
Bringing diversity to life
At my workplace, I can proudly say we promote diversity through many different actions. One, most importantly, is to respect diverse people and their rights. Another is to talk about it openly and have training sessions to raise awareness and consciousness of how important it is for any company to bring diverse teams to work together collaboratively, respecting each other, and promoting innovation. Day-to-day, these actions translate into a very positive work environment, where people learn from each other, bring new experiences and ideas without fear. People have the freedom to succeed and change. I truly believe that promoting diversity is a tool to reach greater performance in terms of solutions and products, and ultimately makes people happier.
We have many internal programs supporting diversity and inclusion, such as having more women in management positions at all levels. We believe we are at the beginning of a journey, but we are, every day, bringing that to life.
Removing the filter
Five years ago, we first recognized that we needed to do more in terms of having a diverse legal team in Latin America. We were pretty much all from the same background, very
similar in terms of life choices and, although we were, at the time, divided equally between men and women.
As a team, we thought: what could we do better to be more diverse, and to support diversity and inclusion? First, we had a training session with one of the internal ambassadors, and he opened our eyes to simple actions that we could do as part of our daily routine, and when recruiting people, which would have great impact in promoting this value.
We can proudly say we are a much more diverse and united team. We have embedded diversity in our actions within our team and beyond, when selecting our external advisers and new people for our team, for example.
We look at each other as professionals who work hard together to deliver visual health products and services, focused on our mission. And we don’t judge.
Influencing others
I believe that, as lawyers, we have a huge role to play in diversity and inclusion, because we interact with multiple teams, partners, customers, external advisers and their respective communities. We are their trusted advisers; we are responsible for ‘opening their eyes’ to this important value. We also interact with government authorities and organizations. If we understand the influence we exercise during those interactions and use those to support diversity and inclusion in the respective workforces, together with our other colleagues (such as the leaders of organizations and HR, to name a few), we can be a motor for change in Latin America and other regions.
Many people are still blind about the benefits of such change and know nothing about the consequences of not respecting such values. We have historically embraced cultural and ethnic diversity, we are people moved with different and unique passions for life, which makes us who we are as Latin Americans. Why not take our diversity values to another level?
The result will surely be having a happier and more inclusive work environment, where people enjoy their work and learn from each other, putting aside any pre-conceived ideas or prejudice that can prevent us from performing well collaboratively.
As of 1st April Ana has been appointed GC for Asia Pacific and India.
Since the Covid-19 global pandemic took the world by surprise in January 2020, no shoulder has been left untapped by the virus, which continues to intrude into personal and professional lives.
Latin America was hit hard, both in terms of health (by summer 2020, the region was declared the epicentre of the pandemic) and economic impact – Latin American GDP fell by 7.5% in 2020.
As it continues to bruise the population, Covid-19 has stressed societal fault-lines, leaving communities and countries grappling with uncomfortable facts – unequal risk of infection and severe illness according to socio-demographic factors like age, disability, ethnicity and affluence – and ethical questions, over access to healthcare and vaccine equity, for example.
We have seen that inclusion can be a matter of life and death. But Covid-19 has raised the stakes for diversity, equity and inclusion (DE&I) in corporate life too, as the workforce struggles to cope with its challenges. In August 2020, McKinsey surveyed over 1,000 executives and over 2,500 employees in large companies across 11 countries. The resulting report uncovered worries around mental health, work-life balance, and workplace health and safety, the connections between workers and employers, and job opportunities. But the gravity of hardships varied along demographic lines:
‘In every country, members of diverse populations reported additional challenges and felt them more acutely than their nondiverse counterparts. For example, nondiverse employees in the United States have experienced, on average, one acute challenge during the Covid-19 crisis, in addition to several other moderate challenges (those that are reported as being felt “somewhat” by respondents). Their diverse US colleagues reported 1.6 acute challenges.’
Furthermore, workers in emerging economies, like many in Latin America (the research looked at Brazil, Mexico, China and India as well as Canada, France, Germany, Ireland, the United Kingdom, and the United States), have felt the effects most starkly:
‘The severity and prevalence of these challenges, such as with mental health, were far higher in developing countries than in developed nations. Among diverse groups, these concerns were both higher in number and felt with greater urgency.’
Women, LGBTQIA+ people, people of color (POC) and parents were found to be struggling more, the report said.
Women at risk
Taking the first group, the pandemic has hurt women more than men at the societal level. In its July 2021 report, Gender Equality and Covid-19: Policies and Institutions for Mitigating the Crisis, the IMF set out the issues facing women across the world. Comprising 70% of the health and social care workforce, women are at greater risk of infection. They are also at increased risk of extreme poverty – likely to work in pandemic-scarred industries such as retail or hospitality, and in less secure or informal jobs, while housework and childcare duties have meant that, in some countries, women are even leaving the workforce. Meanwhile, lockdowns have led to a growth in gender-based domestic violence; school closures endanger education for girls, as many simply may not return to school when they reopen, and the digital inclusion gap for women threatens to widen.
Alexandra Blanco is general counsel at Pro Mujer, a Bolivian non-profit dedicated to empowering women, and is seeing this play out on the ground in Latin America:
‘In Bolivia, people have lost their jobs, we believe that’s been a major setback for women. We have data regarding the setback of Covid-19 especially in Latin America, that’s been extremely hit. The governments have not been able to react properly to support people or companies so it’s going to be a major hit and it hits women. Schools in many countries have not reopened, so you have women trying to navigate home school, women that have lost their jobs and are trying to also home school, and they don’t have places to take their kids and to look for other employment,’ she explains.
‘You don’t see a program to reactivate the economy as you do in countries that are more stable financially, so definitely I think Latin America is probably one of the regions that are going to take one of the biggest hits.’
Digital inclusion
Sheila La Serna, chief legal officer at pension fund manager Profuturo AFP, describes the economic background to the pandemic’s impact on Peruvian women:
‘We have a lot of informality – our economy is 70% informally employed. 95-99% of enterprises in Peru are micro and small enterprises and at least 70% of them are led by women. During the pandemic, a lot of women had to shut down their businesses, so my impression is that the gender gap will increase in future years. Women and men have a gap of almost 30% in terms of salary – women will earn 30% less than men in terms of formal jobs. But in terms of entrepreneurs, which are normally not official – they do not pay taxes, they have very little workforce – the kind of business that really helps women who are very ambiguous.’
La Serna explains that women in Peru often run service industry organizations such as beauty parlours, as entrepreneurs commercializing whatever they can, often in the face of technology inequity.
‘Very broadly speaking, the economic impact in Peru of the pandemic has been huge. We have more poorer people than 30 years ago. But, at the same time, people are reinventing themselves. They have proven resilient – that inventive and creative minds of women and men that are fostering the implementation and creation of new businesses and business models very digitally,’ she says.
‘We don’t have equal internet for everyone, so that informs everything. Every business that is engaging in digital and digital transformation is just riding the wave with the pandemic, but those that are not favored with that internet connection – not only the resource itself but the internet capabilities, for example, to be able to understand what e-commerce means, all the technological skills, are something that we are struggling with in some parts of the population. A lot of them don’t have resources like laptops. The government is working on that – there’s a governmental plan to improve the resources and the capabilities of entrepreneurs and to just reduce the technological gap in Peru.’
Corporate life
But what of corporate Latin America? The picture is not rosy, either. The female GCs we spoke to in Latin American countries all emphasised burnout and mental health strains among women in the workplace as significant pandemic-related impacts that have informed the D&I agenda.
And that is borne out by the stats. Seven out of ten female executives in Latin America believe that Covid-19 will negatively impact gender equality, according to the Esade Gender Monitor Latam report published in 2021, which surveyed 1,000 female executives in Chile, Colombia, Mexico and Peru. 41.4% felt that the pandemic would be detrimental to their prospects of promotion.
A woman’s place?
‘I think the pandemic was really hard, especially for working moms. When I talk to my female friends, the word that they always use is: “exhausting”. Because, in Latin American countries, for the most part of the time, the house tasks and raising the children, care, falls more to women. Also we have a lot of contract terminations across the country, and across the globe, and women were hit more than men,’ says Ana Paula de Almeida Santos, former head of legal for Rock Content in São Paulo.
The McKinsey report talks about the ‘double-shift’ – of work and household tasks – and the pressures these place on the mental health of women around the world. But these pressures can be more acute in emerging economies:
‘Women are also more concerned than men about increased household responsibilities – suggesting that the stress of the “double shift” continues to be a gendered issue around the world. Women in emerging economies such as India and Brazil are two to three times more likely to report challenges as their peers in developed countries, suggesting that gender and local context may have a compounding effect.’
Until a more equal distribution of household tasks is achieved, and with pandemic-related work from home seeding additional work at home, many corporations have stepped up to provide the flexibility needed for corporate professionals to keep the plates spinning.
‘Before, I think that companies didn’t believe very much in working from home, and now, if you want people to be good and healthy, you have to start to understand their needs, how they think, how they feel. It is not very important anymore if they are going to be at home for a shift, because, at the end, what you require is that they accomplish their work, not when. They are going to be a better worker and they are going to fight for you,’ explains Alejandra Bogantes, legal manager for Costa Rica and El Salvador at Walmart México and Central America.
La Serna agrees: ‘I have a lot of members of our team that are mothers, or they have to take care of their parents who are old, and they have different schedules. So, the baseline for us from the pandemic has been flexibility, to be very supportive of the team, more flexible than before the pandemic on schedules, and to provide them with all they need to have a good performance in the company,’ she explains.
‘We try to balance and be flexible. We do not, for example, schedule meetings too early in the morning, because some have home school tasks, or they have to take care of their parents, or maybe they are sharing the laptop with their little kids,’ she said.
São-Paulo-based Amanda Lee Cotrim Lopez, senior Latin America legal director for ADP, describes one company solution for lessening the burden of homeworking.
‘Latin America has a strong culture of women being primarily responsible for household activities. Since the start of the Covid-19 pandemic, lunch breaks have not been like before, when we would go to the cafeteria, buy our lunches and still have a few minutes to relax. Now people have to prepare lunch, feed their kids, help elderly people or other people at home with them. This is a huge burden that unfortunately is falling mostly on women associates. With this is mind, we decided to allow our associates to extend their lunch breaks from 60 minutes to 90 minutes during the work from home period in the Covid-19 pandemic.’
She adds: ‘This is something that directly impacts our women associates. But as we also allow our male associates to take a longer lunch time, we would expect them, if they live with a partner, to take this time to also support any household tasks.’
Gender-based violence
In one instance, we heard how corporate support can extend beyond pragmatic support for women working remotely, and into the existential. Levels of gender-based violence were extremely high in Peru even before the pandemic became a pressure for fraught households and, on top of the physical and emotional cost, the World Bank estimates that this violence is equal to 3.7% of GDP in lost productivity for the country. Sodexo in Peru has tried to tackle this issue head on during the pandemic.
‘Of all the numbers that were critical, it was the number of women that suffered violence during the pandemic, because most gender-based violence is in the home. People who suffer violence are in the same room all day with the aggressor and you have to consider all the depression and the fear that the pandemic brought us. So, violence increased a lot during the pandemic. That’s why we made a statement about violence, and we launched a campaign looking “behind the face mask” to help people that are suffering violence to speak up,’ says Mariana Olivares, director of legal and corporate affairs at Sodexo Peru.
The impact of the pandemic on diverse groups goes well beyond gender equality. While not focused specifically on Latin America, the McKinsey report found that LGBTQIA+ employees were more likely to report feeling isolated and fear losing ground at work. People of color in majority-white countries were concerned about career progression, balancing tasks at home and career progression, as well as workplace health and safety. Parents faced challenges over school closures, reporting worries about household challenges, mental health concerns and career progression.
Back in the closet
Francisco Robledo Sánchez is a consultant and strategist in LGBTQIA+ labor inclusion in Mexico and runs the annual HRC Equidad MX Global Workplace Equality Program, an index that accredits companies in Mexico based on their LGBTQIA+ inclusiveness.
One of the biggest problems he has seen in the LGBTQIA+ community in Mexico has been stress experienced by those forced by lockdowns to go back to live with people who discriminate against them, effectively putting them back ‘in the closet’.
‘We ran a survey a couple of years ago and asked people how “out” they were with their family, friends and co-workers. At work, 56% of people are in the closet. 65% are in the closet with their family, and only 20% in the closet with friends. For people going back to wherever they call home, with the people they call family or whoever they live with, 40% of people had to go back in the closet,’ he says.
‘But for people that were actually out at work, and not out with family or friends, work was their safe place. Companies are still finding their way on how to build online safe places for LGBTQIA+ workers that are doing home-based working, so it’s been a big challenge for people to actually be comfortable and be who they are while at work, when not having those safe spaces anymore.’
Robledo Sánchez adds that the suspension of face-to-face events has presented a challenge for companies engaged in LGBTQIA+ inclusion to demonstrate their commitment.
‘It’s easy just to put your flag out, participate on a Pride march, sponsor an event. But now that everything turned digital, they didn’t see the opportunity of sending out messages, having webinars, putting this conversation on the digital platforms. That’s why we have to push training, so anyone can be a sponsor or a spokesperson for LGBTQIA+ issues in their company, other than having the easy part of just using the marketing tools,’ he says.
The whole person
But the GCs we spoke to for this report also stressed that the pandemic was not all bad news for DE&I in the corporate landscape. For some, like Carolina De Nardi, chief counsel for Latin America at Zoetis Inc, it brought an increased sense of empathy.
‘You’re talking to me at home. I can have dog barking noise, or my child, whatever noise it could be. And then, as a consequence, you start to look for the person as a person, not just as a professional,’ she says.
‘Although the pandemic was dark times for some people, I do believe that it brought us the ability to look to the other person and see more than just an email. I think that it helped us to take a better look into diversity and inclusion inside our organizations. I do not have, let’s say, a thousand employees, I have a thousand people that are part of a thousand families, and they have a thousand histories behind them. The pandemic helped me to understand more about my team, to understand their histories, their fears, and what they want, not only talking about career aspirations, but talking about their life goals.’
Empty seats
With working from home not just tolerated but mandated, less emphasis on presenteeism could be beneficial for women with childcare responsibilities, says María José Van Morlegan, director of legal and regulatory affairs at Edenor in Argentina:
‘When you go to the office, and you see a man and a woman, and you see that the woman has to run away to resolve something at school or a medical situation, it’s like: “oh, she’s leaving work, she’s not taking enough care of her duties.” No one asks about what that guy is doing at the same time – if he’s going to football practice or having a lunch or playing golf. The pandemic allows us to see that she is responsible, she is good at work, she can do everything the same as a man. You see men saying, “I have to arrange this maybe in a couple of minutes, because my wife has to go to her job, so I have to take care of the baby”, which is an opportunity to see the possibility of both doing the same thing.’
One GC sees the rise of remote working as an antidote to the brutal reality of corporate law firm parenthood – if burnout can be managed.
She says: ‘I remember when I stopped working in law firms and moved to the corporate world when my first kid was born, because the law firm work seemed to me incompatible with motherhood; I could not get that to work. This will probably change the way we work in the future, because (women) didn’t have to choose between motherhood and working, they could have everything in the same place. And although it was not easy, it was probably better for a lot of us than leaving our babies and going to the office until late at night.’
Such optimism might not have yet translated into increased opportunities for women just yet: 82.8% of female executives felt that men were being preferred for management roles according to the Esade Gender Monitor – Latam report – up from the 2020 report of the same name.
Zooming towards inclusion?
The less formal video call is commonly seen as a tool for strengthening inclusion, not only for women but for other communities too – although not everyone in the Latin American corporate world is pleased with this prospect.
‘The freedom of the people, of the gender expression that they felt at home, it was priceless. A lot of companies had to rewrite business dress codes for the digital area, because they found that people were just so free. LGBTQIA+ people started to express themselves much more freely, growing their hair, using make-up and accessories, and people were starting to see that as a problem when they were looking into the camera,’ says Robledo Sánchez.
‘These months will be very decisive on how we are going to come back to day-to-day work in the office, where people are freer on expressing and dressing and being themselves.’
Video calls were also reported to widen access to information across geographical divides as well as demographic ones, with the potential for digital DE&I training to reach areas where a face-to-face event could not. In some cases, the candidate pool has even been extended outside the typical metropolitan areas from which talent would previously be drawn.
‘Our data protection officer is from the Northeast and she’ll be working from there, she’ll be coming to meet with us from time to time. Before the pandemic, this was impossible, because you just thought that everyone had to be in the office 100% of the time. We have seen many initiatives within Nubank to welcome people from different regions – because Brazil is such a huge country that just having this diversity in terms of regions brings a lot of value to the teams,’ says Pedro Frade, legal director at Nubank in São Paulo.
Improving access
Tech-assisted working can be a double-edged sword for people with disabilities, however – broadening access to previously inaccessible locations or buildings, while creating potential obstacles depending on individual needs. At Walmart, Bogantes describes how the Costa Rican Ministry of Health mandated an office for client services, for colleagues with hearing loss, impacted by face mask use, for example, to access additional support during the pandemic.
Adds López: ‘For people with disabilities, we had to accelerate accommodations, we had to accelerate this evolution to understand their needs, to understand that they had to be working from anywhere. It’s been a journey.’
As companies in Latin America have adapted to new ways of working and the resulting inclusion challenges, legal teams are often poised to support the transitions in ways that can promote equality. At Walmart, the legal team has provided guidance for Walmart’s client services offices, such as preparation for government inspections.
At Sodexo, Olivares not only leads the legal team in Peru
but also the local diversity and inclusion program, and has stepped up as an advocate to widen access to public health information.
‘I wrote an article about the responsibility of the company in the vaccination process. Although the decision about being vaccinated is a personal one, the company can do something from the position of employer and that’s giving information, giving the chance for people to hear from specialists about vaccination, because sometimes the discussions are between neighbours or relatives. I feel part of our responsibility as leaders was to provide information to our people so they can decide if they want to be vaccinated or not, and also give all the permissions they need to go to the vaccination centre,’ she explains.
Her legal function also has an important role to play as the pandemic shifts into a new phase and companies adjust to ways of working that can be sustained long term:
‘The screen is not enough, we need to return to the coffee table, to improve our capability, and we are tired, also. So we are now in the process of switching, in some instances, from remote work to this hybrid way of working, half and half, so people feel comfortable and feel safe as well. I feel that’s something very related to legal. I think we need the correct balance, because working from home has a lot of benefits, but it also raises some lines about duties. I don’t think that people 100% respect the schedule, the day, so we need to also remind them that we have schedules, that we have process [for a reason]. People and their families will have burnout, people will have some mental health issues. We have to understand that,’ she says.
‘As legal, we need to be at that table in that discussion – it’s not only how we want to make it as a company, but we also need to respect the labor regulations. I think that legal has really a great opportunity to work on this topic.’
Looking to the future
Societal divisions exploited by the virus are not new, but many of the solutions innovated by corporations in Latin America and the senior corporate counsel who are engaged in DE&I, are. It may be the case that Covid-19 has set the clock back on inclusion. But many are more hopeful: that as corporations, and as people, we have learned more about each other and our needs, and that this new understanding can be the bedrock for a more inclusive future.
As Valéria Schmitke, regional general counsel for Zurich Latin America puts it:
‘Some people are saying we retroceded 10 years in terms of D&I. I’m not sure about that really. Let’s see how the society recovers from this pandemic. History shows that after pandemics, after big crises, society flourishes. So let’s see. We will continue to work.’
First, we should make mindful decisions about who we hire and resist the urge to favor people who look like us, went to the same schools as us or grew up in the same towns as us. Then, once you have a diverse legal team, be mindful that everyone’s experiences are different, and just because something has worked well for you, does not mean it will work well for me. Unsolicited commentary about the way one person handled a situation could be received differently than may have been intended so we should be aware of the impact of our words. Allow lawyers to develop their own styles and manage their projects as they see fit as long as the common goal to fulfill a client’s needs is being met.
Part of the benefit of working at a law firm is that a client has access to lawyers who have expertise in different subject matter, and transactions are not handled by only one lawyer or a group of lawyers with the same knowledge. The value a diverse legal team provides for a client is perspective and broad experience, which translates into a client being able to hear different sides to an argument or consider a strategy that had not been presented before. Having different voices in the room, in just the same way that having lawyers from across different practice areas in the same room, ensures that more ideas are being heard, with the ultimate goal to settle on the best one of the bunch.
A few examples include: (1) I think a best practice is that when a matter is being staffed, a senior lawyer should call each person on the team and tell them why he or she would make a good addition to the team. This adds instant loyalty and a sense of purpose for the lawyer. Compare that to an impersonal email alerting a group of lawyers about the new project. (2) At the start of the project, along with reminding everyone about the client’s needs, the most senior person should articulate his or her expectation that everyone on the team will actively contribute to the matter. Then follow-up. If you notice that the same people are the only ones speaking, specifically ask the others to weigh in and frame it so they know you are interested in their ideas. (3) Utilizing 360º feedback is also a simple but effective technique that allows people to feel heard (and of course, implementing changes based on that to the extent appropriate).
When I joined Sodexo 11 years ago, diversity and inclusion was part of the DNA of the company even then, but not in the same way that we work now. Ten years ago, these topics weren’t part of the board of directors or the leaders of the company. Nowadays, I think it’s not acceptable if a company doesn’t take the time to discuss these topics at board level. It’s not about one specific sector or business – the market in Peru needs to talk about diversity and inclusion.
At Sodexo, we started setting D&I KPIs in 2015 – I remember the first time I asked for the number of women in the company, and we had 25%. We started working. We developed our local diversity and inclusion policy because we had a worldwide one, but we wanted to work on this topic in Peru. After six years of working and understanding the real problems of D&I, we have reached 40% women in the company. If I told you that we had improved the number of women from one year to another that’s easy – you just hire more women and that’s it. But if we see this change over six years, it’s because the culture has changed. It’s a statement by the company about how we want to be seen and how the talent sees us from the outside, especially considering we work a lot with the mining sector in Peru, where the average number of women in mining is very low, around 6%.
People need to be included; it’s not only about diversity. Peru is one of the most diverse countries in the world and that doesn’t make us necessarily inclusive. I think this is part of our challenge. It’s not enough to say, ‘I respect and hire people regardless of age, sexual orientation, gender or whatever’. It’s about taking action, making a commitment and changing the policies in order to guarantee the conditions that we are offering to our people.
Part of our commitment to diversity, equity and inclusion is to promote and foster a culture of equal opportunities, to provide inclusive workplaces everywhere we operate. It’s part of our strategy, it’s part of our core business. So, we have created policies about diversity and inclusion, and we have adjusted our policies to be fair and to guarantee that everyone, regardless of gender, orientation, disabilities, religion, whatever, all have the same rights and can hold any position in the company. Because sometimes you don’t say it, and when you don’t say it, people don’t believe it, or don’t think that it’s possible.
In 2018, Sodexo Group launched a gender balance study with McKinsey, as one of their business cases about gender equality. We share that report with our clients and providers and invite all our stakeholders to work with us and make some activism around gender equality.
According to Peruvian statistics, seven out of ten women have suffered physical or psychological violence. It’s all around. So we said, ok, we are 40% women, but we have 60% men, so we have an opportunity to talk about gender violence, not only for women – because women along can’t make the change – but also in men. We started talking about the importance of shared roles in the house, and to try to reduce or eliminate all the unconscious bias regarding, for example, positions ‘for’ women or man, like HR for women, IT for men.
We started using blank résumés in hiring, in which the user has only the information that is needed to take a decision about the position, with no name, gender, age or photo. Because, for example, if someone is hiring for a maintenance professional, the supervisor might think of 35-year-old man, and if they are presented with a 40-year-old woman, they might think they don’t fit the position. We have seen the effect of this, how people started hiring people that they did not expect: ‘Oh, I didn’t know that they were a woman!’ or ‘I didn’t know that he was a man!’ In that moment, you know you really have hired talent and not what your unconscious bias is telling you. We also started empowering women, showing success stories of women in positions that were traditionally thought of as ‘for men’, for example successful women engineers.
In Spanish, we have a lot of words that are gender-based, for example, ‘profesor’ and ‘profesora’, which is the same word for different genders. I’m a lawyer, and when I see a job advertisement that says ‘avogado’, I assume that I can apply. But if a man saw an advertisement for an ‘avogada’, they are not going to apply. So we developed an inclusive guide for language, and that way we avoid talking only to the 50% of the population that are men. We distributed the guide to all our people, so now we talk inclusively, to all genders.
We created unconscious bias workshops for people involved in HR and talent attraction, because if the people on the front line receiving a résumé have something against women or are uncomfortable with people of a certain region or whatever, they are not going to pass the résumé on to the company. So, we work a lot with people selecting talent to talk about unconscious bias to help us to have a better process for all people.
In the legal department, we review all the policies. For example, we know that our policies regarding salary sit within a framework, a scale or a band. But do the policies talk about pregnancy, for example? Because I can be in the correct band where there are no differences between women and men and the bonus is the same for each gender. But what happens if I go on maternity leave, and I don’t have the opportunity to complete the time period I need to obtain my bonus? It’s not written. And if it’s not written, it depends on the manager. As a legal team, our mission is to protect and to write those things down, because when the policy is not clear, that’s when the difference starts. We include those topics in our policies and in our communications, to raise awareness throughout the company.
In terms of D&I (and also ethics), people don’t expect companies just to comply with the law. That’s basic. People expect you to go further. You have law, you have regulation, it’s obvious that you can’t go against those, but we can improve, especially in countries in Latin America that are very far away from how things should be. So, for us, it’s important to give more attention to D&I in order to improve equality for our people. I can’t say, ‘There are no LGBT rights here in Peru so I do nothing for that community in my company.’ It’s not right. And that’s the power we have as private sector companies. We don’t want to go against the policy, but we can do better. We can’t go against the law, but we can definitely do better. I think we have a commitment with our people, with our stakeholders, and also with our society.
As a legal department, we work with the supply chain department on how we can set minimum requirements for some D&I aspects so that even small entrepreneurs can be part of our provider program – because we cannot ask the same conditions for a big, big company to a small one. 40% of our suppliers are small entrepreneurs, and 40% of those are led by women. So that’s also a way to drive and foster a D&I culture with our stakeholders.
Legal has also implemented a compliance program, and we have a hotline to report any situation that could be considered a failure in our D&I program. We listen to all reports, and we have an ethics committee that resolves them according to our policies. We also give training sessions about sexual harassment law to all our employees. We include clauses regarding human rights and diversity and inclusion in our contracts with our clients and our providers as part of our commitment to D&I with our stakeholders.
As a legal department, we search for the real equity inside the company. We are the guardians of all the policies, and how to make them live, so when we review them and align them with the diversity and inclusion program, we are making changes in the company. It’s easy to talk about diversity and inclusion but have policies that are not aligned with our speech and how we work. But we can guarantee that all the things we state are part of our conduct and ethics code. It’s important because it’s the governance, the institutionality that we need to include in our companies, because if it’s not written, if it’s not in a document approved by the company, it’s just something we said and that’s it. I think we guarantee that diversity and inclusion is not only spread among all our employees, but also can be respected as part of the DNA of the company.
At Zoetis, we have an internal Colleague Resource Group (CRG) called WAVES – Women Achieving Vision, Excellence and Success. I am a board member of this group, and the idea is to empower women inside the company for leadership positions and create awareness of women and our roles. We have a female CEO, a female general counsel, and I was promoted as chief counsel recently, but, generally speaking, there are still some regions, especially in Latin America, where we could do more. So, our mission is to increase representation of women at the director level and above to 40% by 2025. How will we be able to achieve this with a CRG? If we help each other, empower each other, and also with a mentoring program.
I’m a mentor inside Zoetis and outside as well. I really like to mentor women, because in general, what I see is lack of confidence about our talent. In Brazil, and in Latin America as well, since we are born, we learn that men are strong, men are capable of doing more. And then we grow up with this bias: they are better than me.
I do pro bono mentoring every Wednesday night for young women up until the age of 26. Most of them suffer from lack of confidence; because society is created in such a way that they don’t believe in themselves. That happened with me in my career – I know that, on certain occasions, when a bigger position was offered, the first reaction I had was: am I good enough for this position? But if the position was offered, of course I was.
So that’s why it is important for women to support other women, so that we create more confidence among ourselves, and we speak up. One of the things that I notice a lot is that women often don’t speak up. We don’t ask for a salary increase. We think: I’m going to leave, I’m going to be on maternity leave, I’m so afraid. No. This is your right.
I am part of a Brazil-based diversity and inclusion group at Zoetis, and one of the things that I think about is that, ‘ok, we are all diverse, but how do we include that diversity on a day-to-day basis?’
Sharing stories
For example, if we launch online training, sometimes I have the feeling that people join the training just to check the box – but they don’t think about what it really means. So, what I like is the storytelling approach.
For instance, in our D&I group, there was a person who was legally registered as a girl at birth, but did not recognize this gender, discovering himself to be a trans man. From the beginning, he raised a hand and said my name is a ‘she’, but I recognize myself as a ‘he’. Last week, I got very emotional because I saw his new birth certificate with the gender changed, and I know that this is a victory. I worked on the legal side to change all the labor paperwork, and I was so emotional, so happy, because I know the story, I know everything that he went through.
He shared his story so the entire company knows a little bit of what he faced during this journey inside Zoetis. This is what diversity and inclusion is.
I also sit on the Global Council for Diversity and Inclusion in the company, which is a group of people from different countries, and the idea is to talk about D&I inside Zoetis. We created CRGs. We are launching online training to the entire company. We created the ‘macro’ road map, and now we are starting to work on different fronts.
Of course, there are lots of things to do, but I’m very happy to work in a company that is taking diversity and inclusion very seriously and creating awareness and discussion about such important topics. It’s not just a box to check. And the thing is that if we create an environment where people feel safe, secure and comfortable enough that they can be what they want to be, people will share new ideas. At the end of the day, we will bring more value to the shareholders. This is so simple. But we never talked about this in the way that we are talking today, ten years ago.
Diversity and inclusion is in the CEO’s agenda, so each department has a goal, or something, with regard to D&I. So when you cascade down, it goes to business leaders, and it goes to legal as well.
Opening up to talent
In legal, when we talk about talent, D&I is something that we take into consideration. Most of the time, when I see an open position for a lawyer in Brazil, I see that fluent English is mandatory, fluent Spanish is mandatory and you must have a degree from a certain university. We need to change that.
Because if I have an open position, and I say we need somebody from something similar to an Ivy League university, or someone with English and Spanish, who would I be interviewing? Just white people. If I put all this as mandatory during the hiring process, I could not take into consideration a lot of good and diverse talent. So, if I have an open position, the university doesn’t matter. As long as they are competent, I don’t care. I don’t care if they have fluency in English, in Spanish, or whatever, this is something that they can learn during the journey. I need to take into consideration that people will only have money to pay for English classes after they have a salary and can invest their money on that kind of thing. If I am so restricted during the hiring process, I would not bring diverse talent into my organization.
Lawyers in skirts
I am a member of Jurídico de Saias (‘Lawyers in Skirts’). The main purpose of this group is that we help each other, we exchange ideas (considering confidentiality) between ourselves, and we support each other. It started very small and it’s bigger now. As part of that, we created a mentoring program: I am a mentor of another (what we call) ‘skirt’ – another in-house lady – and the idea is to support and help the other lawyer to grow inside her company.
We also have a live, monthly event for subscribers on Instagram, where we talk about a subject, for example, leadership or compliance. On one occasion, I interviewed another lawyer who was an expert on a particular topic.
Through Jurídico de Saias, I began to learn the concept of helping other women, and then I started to replicate this during my pro bono mentoring sessions and in my mentoring program at Zoetis. And that’s the main purpose – because if I learn something during my process, it is great if I can share those learnings with another woman.
Being an influencer
At the end of the day, an in-house lawyer is a business partner and, by being a business partner, we play an important role. I not only advise on legal aspects but also on general aspects. And legal has an important seat at the table: we have the ability to influence the leaders, to influence the organization. Everybody listens to us, we add value, and we should take advantage of that and talk about diversity and inclusion and include that in the agenda.
Being a business partner, I can advise the team to not sign a certain contract, for example, or to do certain things for the company. I can say, oh why don’t we invest this in marketing and also how is the hiring process? How many women do we have in leadership positions in the country? The beauty of being the in-house lawyer is that we can influence the entire organization.
Having a diverse team brings different points of view to the table where a specific solution or point is raised because of the unique perspective of an individual based on their life experience and identity. I have been in situations where someone raised a point that was within my blind spot, and without which the group would not have reached its ultimate decision. I also believe that diverse teams have the ability to be more creative and innovative in their way of thinking leading to better decision making overall.
First, we should make mindful decisions about who we hire and resist the urge to favor people who look like us, went to the same schools as us or grew up in the same towns as us. Then, once you have a diverse legal team, be mindful that everyone’s experiences are different, and just because something has worked well for you, does not mean it will work well for me. Unsolicited commentary about the way one person handled a situation could be received differently than may have been intended so we should be aware of the impact of our words. Allow lawyers to develop their own styles and manage their projects as they see fit as long as the common goal to fulfill a client’s needs is being met.
When I joined Sodexo 11 years ago, diversity and inclusion was part of the DNA of the company even then, but not in the same way that we work now. Ten years ago, these topics weren’t part of the board of directors or the leaders of the company. Nowadays, I think it’s not acceptable if a company doesn’t take the time to discuss these topics at board level. It’s not about one specific sector or business – the market in Peru needs to talk about diversity and inclusion.
