Legal Evolution In a Virtual World

Diversity As A Legal Buffer

Diversity As A Legal Buffer

     At the request of leadership, I run a Black Lives Matter movie discussion club at my day job.  Once every quarter, we watch an African or African-American themed movie, and we have candid conversations about the themes of that movie, whether we have seen those issues in our day-to-day lives, and how we, as corporate and community leaders, can educate and influence those around us to be more mindful, more inclusive, and more intelligent when dealing with people of diverse backgrounds.

    One of my colleagues asked me for an example of how diversity and inclusion enables us as a tech company to be more competitive, or how it impacts our products. I relayed the story of the original Tesla self-driving car software, where unconscious bias towards white people in data sets that inform AI algorithms can cause self-driving systems to not recognize that a darker-skinned person in a crosswalk is an actual human in the way that a white person is a human, and potentially cause injury or death.

    They initially thought it was an urban legend, but this has been documented as early as 20211 and continues to be an issue as recently as August of this year2, now even more of a concern now that self-driving ride services such as Waymo are becoming more and more popular in large, diverse metropolitan areas such as San Francisco, CA, and Phoenix AZ.  

    It is a modern example of an age-old problem; the assumption of whiteness (or maleness, or ability, or heterosexuality, or wealth, choose your dominant demographic) as the norm, and thus, other categories are perceived and therefore treated as unusual, foreign, or exotic3 means that non-dominant races, experiences, and people are rendered invisible, and thus, what works for the dominant demographic—in this case, whiteness—is thought to automatically work for all people in a diverse society.

    How can this be avoided?  There are two areas of vulnerability to this kind of bias, and thus, they are the best places to find potential solutions.

Vulnerability 1: Who Is In The Room?

     Remember the 2017 Kendall Jenner Pepsi ad where she effectively “solved” police brutality by offering a police officer a can of Pepsi during a Black Lives Matter protest?  Pepsi was pilloried for the tone-deaf approach, which effectively glossed over the violent and contentious relationship between police forces and peaceful protestors, minimizing the true danger faced by people speaking out against the killings of unarmed citizens by officers. The ad inadvertently drew a striking contrast between the police response to Jenner, a white woman, and the response to Ieshia Evans, a black woman captured in an iconic photo resisting charging police officers in a Baton Rouge, LA protest.4

       Who thought this was a good idea?  Likely, a room full of people who did not participate in the riots, or have never been touched by police brutality, or in their own words, “trying to project a global message of unity, peace, and understanding”5   that doesn’t reflect the true experience of citizens impacted by police violence. Between the ad agency that created the campaign, and Pepsico leadership, no one at all in the approval chain was able to reasonably question the impact of the campaign, nor were educated enough to know the reality that protestors face regularly6

    Here, the dilution of diversity efforts is glaringly apparent.  Defining “diversity” in terms of “diversity of perspective” or “diversity of opinion” allows some enterprises to claim a focus on diversity and inclusion while still having racially homogeneous workplaces and workforces.  This defeats the purpose of diversity as a path to racial equity, but doesn’t allow the firm to escape the consequence—their “opinion diverse” team came up with and green-lighted a campaign that became a PR blunder for the company, and could have, in a more serious situation, resulted in legal exposure. Sometimes, you actually need a black person in the room.

Vulnerability 2:  Are You Looking Hard Enough?

     One of the oldest and most erroneous arguments posited against Affirmative Action efforts is the idea of a quota that forces universities and companies to hire people of color, women, the disabled, and other protected classes at the expense of intelligence, aptitude, and capability.  Many times, these hires and admits are thought to be only in prestigious institutions because the government forced it, instead of on their own merits and talents. 

     However, the opposite is often true.  It would be to the dire detriment of these institutions to hire or to accept unqualified people to comply with a mandate that impacts all competitors in a given industry.  Rest assured, competitors aren’t hiring stupid people just to comply with a given quota, and if one does so, they are creating their own disadvantage.

    Instead, the regulation challenges firms and institutions to expand their recruitment and applicant pools to find qualified minorities and members of protected classes that present a fit for the culture, work expectations, and performance expectations of the institution.  The goal is to encourage these firms to expand their feeder pools beyond their usual scope, which may actively or unconsciously exclude qualified minorities or members of the protected class for many various reasons.

     This is not out of the realm of possibility for large corporations like Pepsico and Tesla.  Organizations like the National Society of Black Engineers (NSBE), the National Black MBA Association (NBMBAA),  and conferences such as the women-centered Grace Hopper Conference, host career fairs and conferences annually where companies can find the most qualified and talented members of protected classes, not to mention recruiting at HBCUs and social organization events. 

     At the end of the day, the concept of diversity, equity, and inclusion is not just an imposition of the government or a way to give a handout to people who would otherwise not deserve it.  In many ways, having a truly racial, gender, ability, and other indicator-diverse population can not only serve as a competitive advantage, but also protect companies and other institutions from avoidable embarrassment and exposure.

  1. Miley, Jessica, Autonomous Cars Can’t Recognize Pedestrians With Darker Skin Tones, Interesting Engineering, August 9, 2021. https://interestingengineering.com/culture/autonomous-cars-cant-recognise-pedestrians-with-darker-skin-tones ↩︎
  2. Hawkinson, Katie, The Pedestrian Detection Systems In Self-Driving Cars Are Less Likely To Detect Children And People Of Color, Study Suggests, Business Insider, August 26, 2023. https://www.businessinsider.com/self-driving-cars-less-likely-detect-kids-people-of-color-2023-8?utm_source=copy-link&utm_medium=referral&utm_content=topbar ↩︎
  3. Cole, Nicki Lisa, The Definition of Whiteness In American Society: How White Skin Color Determines Social Attitudes And Constructs, ThoughtCo., November 8, 2019. Whiteness: Definition in Sociology (thoughtco.com) ↩︎
  4. Victor, Daniel, Pepsi Pulls Ad Accused of Trivializing Black Lives Matter, The New York Times, April 5, 2017.  https://www.nytimes.c*om/2017/04/05/business/kendall-jenner-pepsi-ad.html?smid=url-share ↩︎
  5. Victor, Daniel, Pepsi Pulls Ad Accused of Trivializing Black Lives Matter, The New York Times, April 5, 2017.  https://www.nytimes.c*om/2017/04/05/business/kendall-jenner-pepsi-ad.html?smid=url-share  ↩︎
  6. Tillman, Lily, Case Study: Pepsico & Kendall Jenner’s Controversial Commercial, Astute Creative Digital Agency, June 17, 2019. Case Study: PepsiCo & Kendall Jenner’s Controversial Commercial | astute communications ↩︎


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