The artist formerly known as Kanye West is out there defending Hitler. Kyrie Irving is posting links to films dabbling in Holocaust denialism. Donald Trump is dining with white nationalists. States are banning history books for acknowledging that segregation existed. Racism and antisemitism have never lived all that far from the core of American society, but it’s gotten a lot more in our face over the last year. Even the New York Times put out a Swastika-themed Sunday Crossword. (Happy Hanukkah from the Times!)
Of all those examples, the Times probably didn’t intend to endorse Nazis, but failing to check itself in the current climate amounts to “puzzle page malpractice.”
But, as an institution, Biglaw fancies itself shielded from these currents. Attorneys are, by design, more educated than the average person. Firms can be a hotbed of implicit bias and discrimination, but generally speaking the professional setting tamps down explicit displays of bigotry. Not that implicit intolerance is any more “innocent” than explicit intolerance. It’s just that explicit prejudice carries a lot of extra baggage — everything’s a lot more broken when someone is willing to say it out loud.
While this story is about the national wave of bigotry cropping up at one Biglaw firm, the moral of the story is that this isn’t unique to one Biglaw firm. This could come up at any firm and the proper takeaway from this incident is to recognize that no firm is immune and most firms aren’t doing enough to stay vigilant against this scourge.
In November, McDermott Will & Emery hosted an Associate Retreat. One of the events offered was a diversity and inclusion program. During the program, the presenter asked the audience of associates what they hide about themselves at work. Responses were displayed anonymously on the screen behind her. Two responses included “white pride” and “Nazism.”
Now, why would anyone set up a system to post unmoderated, anonymous messages on a screen in 2022? Didn’t we all learn this lesson in 2013? Internet Historian can explain what happened at the Agile Conference back then:
Are there really Nazis at MWE? Probably not. Does it really matter? Also probably not. Despite the above video’s more smirking take on “professionalism,” this is blatant harassment in any context. And posting bigotry on a diversity and inclusion presentation board is even worse because it conveys direct contempt for the subject.
Over at The Atlantic, Yair Rosenberg had a great essay on why Dave Chappelle’s latest SNL monologue was so problematic. Chappelle touched on the rise in antisemitism with his now-standard “why can’t we make jokes about this anymore” angle. As Rosenberg points out, it is actually getting harder to joke about antisemitism — not because of the vague woke mob that exists in Chappelle’s head, but because this shit has gotten way too real:
When so many people have proved so susceptible to the conspiracism that animates anti-Semitism, it becomes harder and harder to laugh about it. Comedy cannot be divorced from its context. Jokes assume a shared set of presuppositions between the comedian and the audience, which are subverted for ironic effect. But when that collective context is called into question, and one no longer knows whether everyone in the room is operating from the same premises, what was once satire becomes suspect. After all, the best parody is often indistinguishable from the thing itself—the perfect impressionist is the one who sounds exactly like Donald Trump. But when the performance is anti-Semitism, and so much of society seems in thrall to its essential elements, it’s not clear whether the bit is setting up a punch line—or just a punch.
Which is all to say that white pride “jokes” during a diversity panel aren’t jokes. They’re racial attacks whether the troll subjectively thinks they are or not.
A McDermott representative shared details about the firm’s response:
During an interactive diversity training, two anonymous comments constituting hate speech were posted to a word cloud on screen. The facilitator, a renowned diversity, inclusion and bias expert, immediately addressed one of the comments in real time using the example to encourage education and understanding of actions that perpetuate discrimination. The next morning during the general session, which was the next time that the entire group was gathered, chairman Ira Coleman detailed the incident and strongly condemned all forms of hate speech and discriminatory behavior and reaffirmed the firm’s dedication to a culture valuing diversity and inclusion. He reiterated that this behavior, even if made in jest, would not be tolerated.
The firm also explained that it “is moving forward with the group’s recommendations for annual mandatory bias training for all employees, as well as further training for leadership” and plans to “engage all employees in professionally moderated small group discussions aiming to help bridge differences through the sharing of personal experiences.”
That said, one tipster noted that a number of associates didn’t make it to the retreat and therefore never heard the message the next morning and that “no email was sent firmwide condemning the racist and antisemitic statements and still has not.” Which strikes me as a side effect of the lawyerly impulse to “do things” without recognizing the value of just communicating. Booking anti-bias training is critical, but just keeping the rest of the firm aware that leadership is on top of it at every step matters too.
And firms shouldn’t wait until something like this happens to keep spreading that message. Because this stuff thrives when trolls see diversity and inclusion as some sort of tertiary box that gets checked once a year — a compulsory session that they can shrug off as unimportant. Building a culture requires constant communication.
It’s unfortunate that McDermott had to be hit with this one first, but the rest of the profession should take heed that firms aren’t immune to the negative forces out there. Keep the conversation going and keep anti-discrimination efforts in the foreground.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
