Our Stories, Ourselves: Overcoming Stigma to Build Authentic Workplaces With NYU Law Professor Kenji Yoshino

Jennifer Brown | | , ,

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Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law at NYU School of Law, discusses the concept of covering in the workplace and his own experiences with having to downplay his identity. Kenji discusses the legal implications of covering, as well as the value to organizations of creating a culture where people can bring their full selves to work. He also shares how he is bringing in experts in theatre and improvisation to assist in teaching the concepts of diversity, inclusion and belonging to legal students.

In this episode, you’ll discover:

– Kenji’s diversity story and his struggle with his sexual orientation (2:54)
– The difference between covering and “passing” (7:07)
– The cost of covering in the workplace (12:31)
– The real commonality among LGBTQ individuals  (21:04)
– A surprising group that often engages in covering behaviors (21:54)
– The value of having introverts on leadership teams (29:20)
– Why the true number of people who cover in the workplace may be much higher than is currently reported (32:00)
– How covering differs between groups (37:28)
– How the law is starting to address covering demands in the workplace (42:00)
– The differences between diversity, inclusion and belonging (48:00)
– How Kenji is using theatre to teach about diversity and inclusion (55:02)
– How discrimination is perpetuated by current hiring practices and what do to about it (56:10)

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Listen in now, or read on for the transcript of our conversation:

JENNIFER BROWN:  Welcome to The Will to Change.  This is Jennifer Brown.

My guest today is Kenji Yoshino.  Kenji is the Chief Justice Earl Warren Professor of Constitutional Law at NYU School of Law, and the director of the Center for Diversity, Inclusion, and Belonging.

A graduate of Harvard, Oxford, and Yale, he specializes in constitutional law, anti-discrimination law, and law and literature.

He’s the author of three books:  Covering: The Hidden Assault on Our Civil Rights, A Thousand Times More Fair: What Shakespeare’s Plays Teach Us About Justice, and Speak Now: Marriage Equality on Trial.

He is frequently quoted in such media as The New York Times, NPR, CNN, and MSNBC.

Along with our previous guest on The Will To Change podcast, Christie Smith of Deloitte, he is the co-author of the 2013 report, Uncovering Talent: A New Model of Inclusion.

Kenji, welcome to The Will To Change.

KENJI YOSHINO:  Thanks so much for having me, Jennifer.

JENNIFER BROWN:  Thank you, I’m so glad you’re here.

I am a big admirer of your work.  I’ve been following you for a long time.  I quote you all the time in my circles, and everybody always knows who you are, especially for a substantial amount of work you’ve done around the concept of “covering,” which we’ll get to in a little bit.  But first, I wanted you to acquaint our listenership with a little bit about your story.

You are intersectional in many ways, and I know you have navigated your various identities along the way in your career.  I know you’re really introspective about it and you’ve written a lot about it.  Can you tell us a little bit about how you discovered your authenticity, how you began to live in a really aligned way, and how you sort of brought those pieces of what makes you who you are together to create the person that you are today?

KENJI YOSHINO:  Well, first, let me say that the admiration is mutual.  And, of course, I’d be delighted to give an introduction.  It might even be useful as a way of weaving in an introduction to the concept of covering along the way.

JENNIFER BROWN:  Perfect.  I thought so, too.

KENJI YOSHINO:  Great.  The way I sort of think about my own development to becoming a comfortably and openly gay man is through three demands for assimilation that weakened over time.

I came out, by today’s standards, relatively late, I suppose, in life.  I had just graduated from college and was at Oxford, and was on a fancy fellowship.  And I realized that I’m no longer asked to be the interviewer for these fellowships because I always described Oxford as the global epicenter for depression because I was struggling with my own sexual orientation then.

I think of that as a conversion phase because the only thing that I wanted to do in that time period was to convert to heterosexuality.  The only consistent foray I made from my college rooms in those days was to go to the college chapel to pray to become straight — and to gods I wasn’t even sure I believed in.

So it was only actually after I went to law school that I accepted the fact that I was gay and moved from what I’ll call the “conversion” phase to the “passing” phase of my life.  I accepted the fact that I was gay, but masked that fact from everybody else.

Unfortunately for me, that was the first year that Yale Law School offered a class called Sexual Orientation and the Law.  No one on the regular faculty was equipped to teach it, so they got a person from the ACLU to guest lecture.

And I had this dilemma where I had to figure out whether or not to sign up for the class or not, realizing that on the one hand it might not ever be offered again, but on the other hand that in 1993, which is the year this was, that if I signed up for this seminar, I would effectively be outing myself as a gay man because the only people who were taking that class at the time were gay women, gay men, and a few righteous straight women.  And a straight man would not be caught dead touching this class with a ten-foot pole.

So, ultimately, sort of long story short, I decided that I needed to just have the courage of my convictions and I’d take the class, and as expected, out myself to the entire law school community.

I had an extraordinary experience there where I discovered not only a deep acceptance that I had never experienced before from the community that I was living in, but also within the law, just realizing how much law could do to make the lives of LGBT individuals better.

By the time I graduated from law school, I was an academic, to be sure, but was engaged in a lot of advocacy and was passionate about becoming a law professor.  I was hired back at Yale on their tenure track to do LGBT work, among other things.

But the kind of kicker of this is that no sooner did I arrive at Yale Law School, then I encounter a third, subtler, demand for conformity.

Jennifer, frankly, I thought, by the time I’ve overcome conversion and passing, I could kind of relax about my sexual orientation because everybody knows I’m gay.  The people who hired me knew I was gay, so I could just stop managing my sexual orientation.  But as it turned out, a very well-meaning, very friendly colleague put his arm around me and said, “If you want to get tenure here, you’re going have a lot smoother ride if you are a homosexual professional rather than a professional homosexual.”

I know exactly what he meant.  He meant that I would do much better if I were the mainstream guy who taught constitutional law, federalism, the separation of powers, and the Dormant Commerce Clause, and just happened to be gay on the side as a kind of “extracurricular” activity, rather than if I were the gay-rights guy who was writing on gay rights topics, teaching gay rights classes, writing gay rights amicus briefs, and so on and so forth.

And such was the terror of the tenure track, that for a couple of years I tried to accede, but finally, I just realized that I would much rather not get tenure as somebody who I was, than get tenure as somebody who I wasn’t.

What made me curious about this was that I didn’t have a term for the demand that had been placed on me, so I threw my net out on the sociological waters and came up with this term “covering” from Erving Goffman.  “Covering” is his term for when an individual tries to conceal or downplay a known identity. So it differs from passing in that people know you belong to the group, but it is very similar to both conversion and passing insofar as it’s a demand for assimilation.

So the idea is it’s fine for you to be gay, but downplay it.  Don’t write on gay stuff.  Don’t bring your same-sex partner to work events, et cetera.

It was only after I overcame the covering demand that I finally felt fully authentic in the workplace, and then I began to apply that to other contexts in my life where I felt like I had an outsider identity — being Asian American, being the most obvious of those.

The thing that struck me as really critical was that conversion and passing didn’t relate to being a racial minority, because very few people, if any, were asking me to either convert or to pass on the basis of race.  Many, many people were asking me to cover on the basis of race by, quote/unquote, “acting white” or downplaying my advocacy for Asian-American issues, or so on and so forth.

So I hope that helps as a kind of thumbnail autobiography that also situates some of the key concepts that we’ll be talking about today.

JENNIFER BROWN:  Yeah, that’s perfect, Kenji, and I can so relate with the evolution that I experienced.  First I was an HR professional, then a leadership expert, and then morphing into a diversity expert, and the feeling of finally joining all those pieces that you had sort of minimized and spent so much time distancing yourself from, and all the energy that goes toward that, which you talk about in your research.  You actually quantified it in your research, that it has a negative impact on our self-esteem, and so we’re carrying this around.

Did you have a moment when you realized you could actually relax and breathe?  Did it feel like you were throwing off a weight that you’d been carrying at some point?  Where you said, “I can do this, I can be authentic.  I can work from my passion and it’s not going to harm me”?  What year was that, when you felt that truly for the first time?

KENJI YOSHINO:  Yeah, it’s a great question.  I would date it at somewhere in the middle of my tenure track, when I made that fateful decision of, “I’m just going to go for it and write about what I’m passionate about because it seems ridiculous to cut myself off from my passions in this way.”

So if we think about my stepping onto the track as 1998, I would say somewhere in the early 2000s, that was when I sort of decided I’d rather get tenure as somebody who I am rather than anything else.

So that did feel like a lead overcoat had fallen off of me because I was finally reconnecting to all the passions that had brought me to that point in the first place, which is all these gay rights cases.

Think about the ’90s and the run-up to the early 2000s.  This is when Romer has been decided, this is the run-up to the big Lawrence case that overturned Bowers vs. Hardwick, so the Lawrence case is seen as the Brown vs. Board of the gay rights movement.

All of this is breaking in the air around me.  You can just see that it’s electrifying.  And here I am, sitting on the sidelines kind of being gay, but downplaying the fact that I’m gay.  So flipping over to sort of saying, “I don’t really care anymore whether I get tenure or not.  What I care about is my integrity as a person and as a scholar and writing about the things that I care about.”

I have to say, in Yale Law School’s defense and to its credit, that it was just that one person who had given me bad advice.  As soon as I said, “I’m going to keep writing about the things that I care about,” everybody on the faculty — except for that one individual whose advice I had taken, so it’s on me for having listened to that one person — but everyone else said, “Where has this person been for the past three years?  This is the person that we hired.  You seemed to have such a fire in your belly and such a passion for your topics, and then you went really quiet for a couple of years.  We were, frankly, getting really worried about you.”

Then, ironically, three years later, I got tenure unanimously — flipping even the colleague who had given me the bad advice.

Obviously, I was lucky.  I don’t want to say this is everyone’s experience, or even generalizable, but I at least want to put out there that there is a deep connection between working on the things that you’re most passionate about and doing your best work.


KENJI YOSHINO:  This is not just a question of, “Did it harm me?”  When we did our survey results, we found that of the people who reported covering — 61 percent of our survey sample — 60 to 73 percent said that it was somewhat to extremely detrimental to their sense of self, depending on the axis of covering that we were talking about.  So even adopting a very parsimonious definition of harm, that’s a very, very high number.  A supermajority of individuals were reporting harm.

But, then, it’s also a question about the organization, because of the 53 percent of people who said that their leaders within their organization expected them to cover, 50 percent said that it somewhat to extremely diminished their commitment to the organization.

So if you want people to actually come back to the organization and make the organization their own, it’s really important that you not impose these covering demands on them.

JENNIFER BROWN:  That’s right.  That is so resonant, and people can really connect to the concept.

I want to just go back to one concept you talked about, though, that always strikes me:  It’s not just the energy we put towards minimizing a stigmatized identity that is harmful to us, but it also prevents us from building trusting relationships and becoming trusted colleagues.

I was just in a room of senior, out, LGBT women.  There was a meeting called Out Women, which was incredible because it’s so unusual to be in a room of women like that.  I mean, it almost never happens.  So when you’re in those rooms, you’re pinching yourself because we can barely find each other.  And then, when we get together, it’s like you can breathe a sigh of relief to say, “At least we’re out there.”  We may not be connected as a community because we’re going about our lives, but particularly in the senior levels, a lot of women have achieved this tremendous success, but I think have still been isolated throughout their career paths to a great degree.

So we’re in the same room, and the panel is talking about how, when we are not fully ourselves in business relationships, it is said about us that, “Well, I don’t know who that person is, exactly.”  Or, the performance feedback might be, “I don’t know if I really know who their family is.  I don’t know if I trust them with this deal.  I’m not sure I can really promote them,” because there’s not the sharing that goes on between heterosexual colleagues.

So the harm is also in terms of the higher up you get in the corporate ladder, the more important relationships are, and the more people really need to know everything about you in order to put you in charge of a giant P&L or a huge region of a company.

And gay people have gotten so good at putting their personal story to the side — and, by the way, working double hard to hang on to the status that they do have — that they become this unknowable person.

That is exhausting, but it also gets in the way of our success as well because people don’t know the richness of who you are. So I just love the story you said that they were like, “Wow, where has this person been?”  They wanted to know all of you, which I think is surprising for some of us to actually realize that that’s been there all along.

KENJI YOSHINO:  I think that’s exactly right, and an extremely astute comment.  I hadn’t quite put it that way to myself before, but the way I’ll connect it to my own story, and I hope that this isn’t too mockish, but before I came out, I had very a wonderful community, I had very wonderful parents.  They would say, “I love you,” all the time.  I trusted the “love,” but I didn’t trust the “you,” because the “you” that I was presenting to them was a heterosexual version of myself, so they didn’t really know the real me.

So it was only actually after I came out to them that I trusted not only the “love,” but I also trusted the “you.”  I felt like when they said, “I love you,” that they actually really meant me, not some other person.  Again, that’s not their fault; that’s my fault because I was hiding myself from them.

I think that a very similar thing happened to me in my workspace, as you’ve just described, which is to say, there was a lot of comments about “I respect you.”  Right?  But if you don’t trust the “you” on the other end of the equation, either as a person at whom the comment has been directed because you feel like, “How much do they really respect me when they don’t really know me?”  Right?  Or, alternatively, as the person who is making the comment like, “I respect you.”  There may be a kind of comma, “But, I don’t really know you.”  Or there’s something that I can’t even put my finger on that makes me feel distant from you.

So, in fact, we’re lucky if someone says, “Oh, I really like that person.”  I’ve heard this, too, many, many times — not just on sexual orientation grounds, but on race grounds or on gender grounds, or what have you.  “I really like this person, but this person is not fully comfortable in their own skin around me, and so therefore, I can’t fully embrace this person as a friendly colleague or someone whom I would trust with a really big deal.”

We’re lucky if someone is articulate enough and self-conscious enough to be able to say that.  I think much more often, it’s just this inchoate sense of, “I’m trying to build this network and I’m going to pick these people and not these other people.”  And these other people are defined not so much by any kind of conscious decision making, but rather more like, “Oh, I don’t feel comfortable around this person.  I don’t know this person well enough.”  And you may not be able even to verbalize that.

JENNIFER BROWN:  Yeah.  Oh, my gosh.  You know, we have this really powerful moment in our LGBT training that we do for a big bank where we think about, what are the gifts that we have gained as leaders that are LGBT people?  And when you do a big brainstorm and people come up with things like resiliency, resourcefulness, courage, and emotional intelligence.  And I say, “These are things that were earned because of a challenging personal situation about your very identity, and who you are, and being seen.”

We had to learn how to overcome that using 15 different tools in our toolkit.  We had to get really creative about, how do you build a relationship with people when you’re actually hiding most of who you are?  How do you do that?  How do you ascertain whether you’re safe, physically or emotionally in a certain situation, and you have to get the work done anyway?

When we kind of do that flip, it’s a transformation in terms of how they actually value the challenges of adversity and what it has built and forged in them.  It is so amazing to see, and it’s like, their favorite part. We call it the “gifts of being LGBT.”  And I ask them, “How did it create you to be a different leader?  And, by the way, how has it now equipped you to be the kind of leader that your company needs the most, now and in the future?”

If you can connect those dots, and I think this is true for all diverse talent, we’ve looked at our deficits, I think, because of our identity for so long.  And yet, in the companies for which I consult, the very variety that they’re looking for — that adaptability, flexibility, and the ability to read a room and to shift and be flexible, or to be creative about problem-solving or taking risks — all of those things, to me, sound like the competencies of every leader of the future.

I think that diverse talent has so much to teach from their experiences.  Yes, it was hard won, but I really see a day, and I hope for a day, when we are emulated because of, perhaps, what we’ve been through.

KENJI YOSHINO:  I think that’s exactly right, and I think that one of the things that — not just “I think,” but I know that one of the things that’s in the literature about leadership is that authenticity is a really key pillar of leadership, and that people are unwilling to follow people whom they view to be inauthentic.

I think that when you’re talking about it in the LGBT context, or anyone who’s willing to be out there as a diverse person, but nonetheless articulate themselves as comfortable in their own skin, is someone who is being authentic, and therefore is worthy of emulation.

There are many other metrics along which we can think about diverse candidates bringing leadership by virtue of their life experience, such as the empathy or the sensitivities that you were raising earlier.

But I think that if I were to take away the nub of what you are saying, what it really would be for me is if somebody just says to me, “I am gay.” and openly like that, then I actually know so much about that person, or at least I think I do, with regard to the amount of courage that that person has and that commitment to authenticity, the amount of resilience that that person must have had to be able to say that, the amount of independence to not take other people’s judgments for their judgments.  Right?

So it’s actually a vast panoply of characteristics.  One of the things I’m really fond of saying is that when I think about this tribe of gay people, I think that the commonality that’s most important among us, by far, the least important commonality is sexual orientation, right?  By far, the least important commonality is the gender to which we are attracted.  The much more important set of commonalities is what it means to have grown up hiding something, being an outsider, needing to figure out when to be authentic and when not, when it was safe, when it wasn’t safe, how to empathize with other people who are going through the same struggles, et cetera.

In a way, we are defined as gay people by our gender of object choice, but it’s really a much richer set of life experiences for which that is still, unfortunately, a proxy.  Right?  When you say “hard won,” it’s really those hard-won attributes that I view to be our true commonalities.

JENNIFER BROWN:  That’s so well said.  I love that concept.

I have to ask about the covering research.  The amazing thing about that is the “big reveal.”  When I teach it, anyway, it’s that there’s a certain group that engages in covering behaviors and distancing from stigmatized identities, and it is our white, straight, male colleagues.

So, could you say a little bit more about how that goes across when you present your research and you reveal that?  I know what happens for audiences when I talk about it, and it is just this moment with the audience that is so poignant, I think, for so many people.  I mean, it’s not just for the white guys in the audience to feel seen and heard, and maybe for the first time to be included in the discussion, but for everybody else to say that.  Some people laugh or chuckle, some people roll their eyes.  I wondered how that moment goes across when you talk about it and how you interpret people’s reactions to it, and what it says about the whole inclusion conversation today.

KENJI YOSHINO:  Yes.  Again, thank you for the question because I have the exact same experience of feeling like that.  In a way, it’s a key finding of our study, which is that 45 percent of individuals who are straight, white men report covering on at least one axis.  The study, by the way, is the study that I did in conjunction with my colleague Christie Smith at Deloitte, it’s available for free on the Internet.  It’s called Uncovering Talent: A New Model For Inclusion.

But when we pushed out the survey on covering, one of the things that didn’t surprise us was that cohorts that have historically been subjected to discrimination or bias or exclusion from the workplace reported very high levels of covering.  So 83 percent of gay individuals, 79 percent of African-American individuals.  But the thing that did surprise us was that 45 percent of straight, white men reported covering.  When I reveal this to the audiences that I talk to, I get exact the same response.

A friend of mine was joking to me about this because she is a body-language expert, so she was telling me, “Just watch people’s feet because people’s feet don’t lie.  They always point to where they want to go.”  And if you’re a diversity and inclusion person, and I suspect you experience this too, and you have to present to corporate boards and boards of trustees of universities or foundations who are predominately “pale, male, and Yale,” right?  Then you get a lot of resistance because people, quite understandably, associate diversity and inclusion with the irony that straight, white men are excluded from these paradigms.  “So we’re going to spend the next hour beating up on me” is the way in which many straight, white men experience these conversations.

So when they hear that 45 percent of straight, white men report having this secret self that they feel like they can’t bring into the workplace, immediately the feet reshuffle.  You can practically hear it.  And if you’re looking for it, you can certainly see it in all the body language.  It’s not just the feet realigning from the door to you, it’s also that arms that are crossed get uncrossed, that people who are leaning back in their chairs lean forward.  Now they’re genuinely curious because they have the follow-up question, which I’m sure you get as well, which is, “How do we cover?  What is this 4 percent of straight, white men covering?” And, of course, we have the answers to that, including things like age, socioeconomic status, mental or physical disability or illness, religion, and veteran status are among the top answers that people have given on our surveys.

So, that is a really important atmospheric moment, where people finally realize that this is a diversity and inclusion paradigm which is capacious enough to include them, and that they, as straight, white men, are not going to be lionized or demonized in the conversation, but are actually in the soup with the rest of us in the search for greater authenticity in the workplace.

I’m sure many of your listeners are sort of immediately coming in with the head-scratching question, “Well, are you really saying that all forms of covering are bad?”  And of course, I’m not saying that.  You know, for me to speak English or to have manners or what have you, are forms of assimilation, and therefore, of covering.

But where we land in the study is to say that when we try to answer the $64,000 question — which follows on the admission that not all forms of covering are bad — which is:  How do you winnow out the good forms from the bad forms?  The answer is: values.  Right?

Many people in our survey said, “I have to cover as a republican,” or, “I have to cover as a democrat.”  From our perspective, none of the organizations that we’re surveying — this may change in the future, I don’t know — but none of the organizations that we were surveying at the time said, “We believe in the capacity to express your political affiliation at work as one of our core values.”   That’s not an inclusion metric for us.

So we thought, you know, “There’s no hypocrisy going on here.”  Whereas every organization said it believed in inclusion on the basis of gender, but every organization contained women who said, “I have to cover as a woman by, say, downplaying my childcare responsibilities.”

So even along that affiliation-based covering axis alone, we had a woman, in every organization that said that it believed in gender inclusion, saying that they had to downplay their status as mothers.  In that instance, in that latter instance, we would say that that’s an organization that’s not living up to its values.

So with these straight, white men, I think that the point is, if what the straight, white man is covering is some kind of bias against LGBT individuals, or any other cohort, then I’m kind of like, “Well, keep that covered.”  Right?  Because that’s not necessarily our vision, or maybe you need to find another organization, or maybe you need to lobby the organization to change its values. Predominately, it’s no harm, no foul.

But, if a individual is saying, “As a straight, white man, I have to cover the fact that I am older,” in a tech company, or, “I suffer from clinical depression or anxiety and I have to cover that,” or even, “I’m an introvert.”  I think work styles is, increasingly, an interesting axis of studies based on Susan Cain’s book, Quiet: The Power of Introverts in a World That Can’t Stop Talking, which I think is a classic in its field.


KENJI YOSHINO:  But, when we are talking about things that are either squarely within the anti-discrimination canon, or the diversity and inclusion canon — mental and physical disability, religion, veteran status, or age — that’s certainly something that we should pay attention to.

Even if it’s something subtler that’s an emerging distinction, like introversion, we should pay attention to it, too, because it’s something that I can’t think of a good reason for, why an organization would say, “In order to work here or advance here or to be a leader here, you have to be an extrovert.”  Given everything that Cain has argued about the power of introverts.  Right?  Which is to say, introverts listen more. Wouldn’t it be great if we had organizations with leaders who are just as renowned for being listeners as organizations who are renowned for having leaders who are great orators?

JENNIFER BROWN:  Yeah, we need all kinds.  I always say everyone has a diversity story.  I always follow up the information about the covering that’s happening amongst white, straight men, by saying what I heard you say once, “It’s not the pain Olympics.”  I think people want to know who’s covering more and how relatively more painful is it, and sort of my story is harder than yours.  All of that dynamic in that conversation, I don’t know if it’s a fruitful one, but I know it’s going through people’s heads.  So I always try to say to audiences, “That’s not the point.”  The point is to build the kinds of workplace cultures where everyone can share their human experiences about things others may not know about them.

When I see an often straight, white, male executive, for example, telling their diversity story, and really making a point to be vulnerable, I do believe that something shifts in their followership.  They are viewed, especially by millennial talent, as an authentic leader who kind of gets inclusion and is putting themselves out there.  I have to convince them that it has this incredible effect because I’m not sure they always see it.

I do believe it’s going to be more and more critical to hear from everyone about their diversity stories, and more broadly defined. What did being an introvert in a sales organization mean, in terms of how you developed as a leader?  That’s a really interesting story of exclusion, and a story about being uncomfortable, and a story about not being a part of the group.

But it’s heavy stories, too.  I’ve had straight, white, male executives come out about their political views, their religion, their disability, having a child with substance abuse issues that was suicidal.  It’s a bit incredible the kinds of things that people will say, but often they will come up to me afterwards and say it.  They don’t necessarily say it in front of their peers, so you can also see that the group mentality is still really powerful when men are in rooms together.

But it’s just been incredible.  I think we need so much more of that, and that’s my work.  I feel really drawn to making sure that we make this a skillset.

KENJI YOSHINO:  I have to say that I’m of two minds about that, and maybe you can help me out here.  On the one hand, I’m in total agreement, Jennifer, that if we look at the 45-percent statistic, I always think, “Well, this is what people said on the fly on a survey where they’re being introduced to the notion of covering for the first time.”  I bet that if you let me spend any amount of time with these individuals, that number would go up to 100 percent because I have yet to meet a person when I do workshops and I hand out covering charts that I ask people to fill out how they cover along my four axes of appearance, affiliation, advocacy, and association — I have yet to meet a person, a human being, who’s been unable to fill out that chart.  Having to cover is part of the human condition, and part of working in an organization that is not going to be perfectly tailored to your individual needs.

So, I agree with all of that, and I also think that that explains or reflects, why people might wait until later to come and talk to you about it.  What they’re feeling within the stricture of the diversity and inclusion conversation is that if you are a straight, white guy, you’re not allowed to have a diversity story, right?  So, if you’re going to communicate that diversity story because you have one, you have to do that to the facilitator afterwards in a discreet way rather than being public about it.  Otherwise, everyone will think that you’re whining or that you’re not seeing your own privilege or what have you.

So, agree with all of that, and the importance of the work that you’re doing. But, on the other hand, and this is where I say I’m of two minds, this is the flip side of the coin.  I also don’t want to create a false equivalency between the 45 percent of straight, white men who are covering and the 79 percent of African Americans who say that they’re covering.  Right?

So, I don’t want this to be what some call “moral licensing.”  Right?  Where I can kind of pat myself on the back by saying, “Oh, well, that African-American individual has to cover, but I have to cover, too.  So, therefore, we’re totally equivalent.”

So I’m not looking for the pain Olympics, but I am looking for some kind of attentiveness to data and this understanding that this notion of covering was immediately available to the African-American individual in the way that it wasn’t available to the straight, white man.

Now, again, you could say that that’s because straight, white men aren’t allowed to be diverse or to have secret selves.  But I think part of it is just, honestly, that African Americans have to work their identity alongside their jobs harder than a straight, white man does.

For example, in our survey, we had no qualitative responses for straight, white men with regard to association-based covering demands.  And that, to me, spoke volumes about how there’s a lot of bridge-building that we could do.  We can say that with regard to appearance-based covering, straight, white men have to do it on the basis of age in the same way that, say, an African-American woman might have to do it by straightening her hair.  Right?

But, with regard to association-based covering, that’s a bridge too far, because every cohort — other than straight, white men — is reporting this association-based covering demand of being unable to associate with members of their own group.

So whether it’s Asian Americans, whether it’s African Americans, whether it’s women, we got reports that said, when more than three of us are talking beside the water cooler, someone will walk by and say, “Are you plotting something?  Is this a revolution?  Is this an NAACP meeting?”  All direct quotes from our survey.  Right?  So the fact that straight, white men didn’t report any of that suggests to me that straight, white men, along that narrow dimension, are more able to swim through an organization freely than other groups.  So, it’s those differences that are important, too.

Ultimately, perhaps we don’t need to arbitrate — I’m curious to know what you think — between those two views of should we be emphasizing the commonalities or should we be emphasizing the differences?  I do think that once you show 45 percent of straight, white men cover as compared to 79 percent of African Americans or 84 percent of gay people, the fact that everyone is paying the tax makes the straight, white men, who are finally being acknowledged as paying a tax, much more sympathetic to the claims of other groups.  Right?

So, ultimately, we may not need to arbitrate which explanation or which way of framing it is correct. Either way you frame it, the fact that straight, white men feel appropriately included within the diversity and inclusion paradigm means that that paradigm is enriched for every group that’s seeking shelter within that paradigm.

JENNIFER BROWN:  I think I agree with your final conclusion.  I think just including them is revolutionary, honestly.  I just can’t believe as somebody who’s 46 years old and doing this work, I feel relatively young in this work.  I came into it very mindful of my predecessors and the way that we had a race and gender-focused conversation.  The work really oriented around that for years and years and years.  And we called it the “shame and blame” style of dealing with diversity issues in the workplace.

I just always wanted something more.  I wanted it to be a positive connection and conversation.  I wanted it to be about what is universal between us.  I just think that’s really resonating with people now.

If it’s kind of a blunt instrument, I’m okay with that, because it’s so new.  It is so new to have people feel they might have something to say about it, to give them a voice.  And I think that that is going to change the energy of everything.  I always learn so much from you, but I love that you were able to explain that one kind of covering is not like another, and one group is doing one kind more than the other, and there are differences.  There are real differences in terms of people’s experience.  You and I know that.

I spend so much of my time explaining the data to executives, in particular, to say, if this is not a meritocracy, you can believe that all of us have equal opportunity, but that is completely dismissing the reality for so many who are starting out barely flush with each other and then falling behind over the course of many, many promotions — hopefully promotions — and career moves, and covering demands, to the point where it’s like, death by a thousand cuts.  So many people end up just spinning out of organizations because it is overwhelming and exhausting to be the “only,” in room, after room, after room, to feel that other people get promoted and you’re not on the list for the pipeline.  It’s exhausting.

And I think people can see it.  At the top of the house, people can see it in their numbers.  All they need to do is look at their workforce and segment it by identity to understand that, “Gee, I thought it was an equal playing field, and it’s clearly not because we are not able to attract, retain, grow, and advance to be representative of the market and the population that we do business in.”

In most organizations, that trend is really clear.  All they need to do is look at their HR charts and they can see it.  And they can see it in the pay inequities that widen over time, right?  There’s so much data.

I think all of this needs to be “thrown into the soup,” as you say.  Different people are convinced by different things, and I think that’s why we also need to be really creative in terms of all the different lenses we provide, and by some miracle, we can get maybe 80 percent of a room on board.

KENJI YOSHINO:  If I may, on that last point about how we need many different levers in this conversation.  When I think about uncovering talent, I always think about the case for uncovering talent as being a three-legged stool.  I think of there being a moral case, a legal case, and a business case.

The moral case is the one that sort of threads through this conversation when we use terms like “equity” or “justice.”  Just saying it’s just a matter of human dignity to allow individuals to allow themselves their expression of their full selves at work.

With regard to the legal one, I have to say, it’s a professional deformation that I’m a lawyer, so I do tend to look at things through a legal lens.  What’s been fascinating to me is that back when I wrote the original book on covering in 2006, now over a decade ago, the law was not doing that much.  The thesis of the book is this has to be a culture project rather than a legal project.  If you’re fired for having two X chromosomes or if you’re fired for your skin color, then you’re going to win your employment discrimination suit in a hot second.  But if you’re fired for acting too, quote/unquote, feminine, or if you’re fired for not straightening your hair, then the outcome is much less clear.

Oftentimes, you’ll lose in a court of law because the courts are very, very skeptical about protecting mutable or changeable attributes of your identity.  Their logic is often that “If you can change it, then you can engage in self-help.  Therefore, the law doesn’t need to come in and save you and the law should be reserved for instances where people can’t change the underlying attribute.”

But more recently, Jennifer, what’s been interesting under the legal rubric, is that, for example, in the Abercrombie & Fitch case a couple of terms ago, that the law is kind of catching up to regulate covering demands and penalize employers who impose covering demands.

In the Abercrombie & Fitch vs. EEOC case in 2015, what happened was that Abercrombie had a no caps policy, and a woman who was Muslim refused to remove her headscarf.  Now, her headscarf was not visibly of Muslim provenance, so you couldn’t tell just by looking at it that she was observing a faith.  Nonetheless, the Supreme Court said, “Look, you asked her to remove something that was her religious paraphernalia.  That’s a substantial burden on her religion, and so this is a really easy case. You lose.”

So that is a covering demand, right?  It’s a covering demand, ironically, that asks her to uncover something.

JENNIFER BROWN:  Yeah, ironically.

KENJI YOSHINO:  But it’s a covering demand that says, “As a Muslim, you have to assimilate to the secular or preppy, collegiate preppy sort of mainstream.  And so you have to remove that headscarf.”  That’s a totally changeable attribute, but the court understood that changeable attributes can often be, if not constitutive of identity at least correlative with an identity in a way that should raise the law’s concern.

Then, finally, in this three-legged stool, beside the moral case and legal case, there’s a business case.  The business case is both the war for talent that we’ve been talking about, which is that if you really want a talented workforce and you realize that of the 53 percent of people who have experienced covering demands from their leaders, 50 percent feel somewhat to less committed to their organization.  That’s a wake-up call for you as somebody who’s managing talent in terms of why you’re having so many struggles retaining diverse talent.

With regard to the war for consumers, the diverse talent is going to understand the end user so much better.  We have story after story after story about how uncovering can lead to greater innovation and greater business outcomes, whether that’s Sandra Lopez, an executive at Intel, who creates the charging bowl after a bunch of male engineers are trying to figure out how to charge a wearable that looks like a piece of jewelry.  They’re agonizing over this, she solves it in a second, right?  She says, “That looks like a piece of jewelry.  I throw my jewelry in a bowl at the end of the day.  Have a bowl that is a charging bowl that sends an electric current through the bowl.  It won’t affect the rest of my jewelry, but it will recharge my wearable so that it’s ready and fully charged the next day.”

And they were kind of like, “This is miraculous.  You’re a genius.  How did you come up with this?”  And she was kind of like, “By living my life.  You know?  This is how I live my life.”

But the key thing about the Lopez story is that, she’s totally publicly on the record about this, she said that when she first started at Intel, she did not want to be identified as the female executive, and was very reluctant to intervene in ways that would make her status as a woman — obviously, in Silicon Valley, this is an issue — more visible than it needed to be.

So, it was only after she engaged in the same kind of struggle internally about authenticity within herself, as I described to you earlier on this podcast, that she decided that enough was enough, and that she wasn’t going to walk by and not make a contribution that would tremendously help the company when she had the insight into the end user that the other engineers on the team didn’t have.

And I have stories from the publishing industry, from the finance industry.  We can talk about those if they’re helpful, but more generally, what we’re really interested in at the Center — which is a center I lead under Diversity and Inclusion and Belonging at NYU School of Law — is this notion of flow and how authenticity is so connected to flow.

When people talk about having a peak flow experience of feeling like they are at their most creative, at their most productive, they often associate that with losing themselves in their work, which is very, very correlated to feeling like there aren’t any external restraints on them expressing who they really are in their work.

JENNIFER BROWN:  Oh, my.  If we could enable people to feel what that feels like on a regular basis, not just here and there, doing what they love.  It’s kind of the different between jobs, careers, and callings.  I’m so fortunate, and I know you probably feel like this too, that we get to work from our passions most of every day.  It’s incredible.

You mentioned the Center and I know we don’t have much time left, but I’d love to hear, you are director of the Center of Diversity and Inclusion and Belonging at NYU.  And in the short time we have left, I guess I’d love to hear about this word “belonging.”  I’m asked often about, “What is the different between diversity and inclusion?  Should inclusion be first and diversity second?”  And then we have these new chief equity officers, like Tony Prophet at Salesforce.  We have the Office of Inclusion and Belonging at LinkedIn, which my friend Rosanna Durruthy’s going to be leading, which I’m really excited about.

Is it an evolution to this concept of belonging?  And why do you particularly relate to that or resonate with that?  And do you think it’s important to throw that into the mix at this point?

KENJI YOSHINO:  Yeah, it’s a great question.  So, let me first cop to the provenance of the term by saying that I completely stole it from a colleague at Harvard.  I’m president of Harvard’s Board of Overseers this year, and I’m on their taskforce for inclusion and belonging.  She was really focused on the word belonging, in part just by her experience of figuring out why people left Harvard.  And when they left Harvard, they would just say, “I don’t feel like I belong here.”  Right?  So, it was really that which she was trying to foster.

I don’t want to put words in her mouth, so now I want to think about this on my own terms.  When I was thinking about the Center, I was thinking, well, diversity is, from my perspective, hardly even an ideal.  It’s just a brute fact of life.  You either have diversity with regard to demographics or you don’t.

Then, inclusion is a build on that, which is to say once you have a diverse population, how do you create an inclusive culture so that those individuals are not simply invited into the organization and then told completely to conform to the organization in ways that make them have to cover or minimize their identities?

So it’s not enough to get Sandra Lopez as an executive into Intel.  She has to feel comfortable enough to make the contribution and not sit on her hands and act like all the other male engineers, but to say, “Look,  you guys are getting this totally wrong. There’s a really simple solution to this dilemma that is torturing you.”

For me, belonging is a step even beyond that.  Which is to say, you can send all of the inclusion cues that you want, but ultimately, you have to think about what you’re trying to solve for and what utopia would look like or what the goal is.  I think what the goal is for all these inclusion efforts is this notion of belonging, and of feeling like the organization has a stake in you, and you have a stake in the organization.  That’s really when you can fully be yourself and feel like there’s a total alignment between your goals and the organization’s goals.  That’s what belonging means to me.

JENNIFER BROWN:  Yeah, and you called it, having “claims” on the community.  I loved that.  That was beautifully said.

KENJI YOSHINO:  Yeah, and it also ties up with really interesting work that’s being done also at Harvard, at the Business School, on psychological safety.  So, Amy Edmondson up there has this notion of psychological safety that Google took up.

Google is trying to figure out what made for its most successful teams.  It looked at all of its most successful teams and tried to figure out what the common denominator was among them.  Some people thought that it would be that you just would stick the highest-performing individuals on a team and that they would form the highest-performing team.  As you and I know, that is generally not the case, because of prima donna effects or other effects.

What they did find was the common denominator was this notion of psychological safety, which they defined as a capacity to — and I’m not going to get this exactly right, but paraphrasing — the capacity to share of yourself and to contribute ideas without fear of reprisal or recrimination from the group.

So this can range anywhere from, “I just had a cancer diagnosis and that’s why I’m missing all these meetings,” all the way to, “What do you think about self-driving cars?  Is that a crazy idea or not?”

So, I think that that notion of psychological safety is so allied with both the notion of belonging and the notion of uncovering, because uncovering leads to psychological safety and psychological safety leads to uncovering.  To me, the three concepts are deeply allied and intertwined with each other.

JENNIFER BROWN:  Oh, my God, I love it.  I love it.  I love it.  This is well-explained.  You always make new connections for me.  This is great, Kenji.

We are out of time, but I want folks to be able to know where to find your books.  So, we’ve got Covering, which is a classic, from 2008?  2006?


JENNIFER BROWN:  2006.  And then Speak Now, which was out in 2015.  Can you say just a quick sentence about what that’s about for our audience?

KENJI YOSHINO:  Yeah, absolutely, and thank you for your kind words.

Speak Now is more of a wonky legal book, I have to say, but it is a story about the trial that occurred on the Prop 8 case.  I don’t mean wonky in the sense of you have to be a lawyer to read it, but wonky in the sense of it really tries to argue for the trial as a truth-finding mechanism, and how important the fact that that trial occurred was to the drive for marriage equality.  I think we got to Obergefell — the 2015 case that made same-sex marriage the law of the land — much more quickly because there was this 2010 trial in the Northern District of California.  I do my best to connect the dots in a way that I don’t think many people have.

JENNIFER BROWN:  So cool.  Okay. So, definitely pick those up.

And then tell us about the activities of the NYU Center for D, I, and Belonging.  Where can people find information on programs we can attend and other such things?

KENJI YOSHINO:  Yeah, absolutely.  So, if you just Google “NYU” and then “Diversity, Inclusion, and Belonging,” and you’ll probably need “law school” in there somewhere as well, our center will come up.

We’re hugely excited about the activities that we’re engaged in.  If you think about it, if you’re a visual thinker like I am, I think about it as like a top bar that’s about interdisciplinary research on diversity, inclusion, and belonging that’s particularly focused on uncovering talent.  My dean was kind enough to build a center around my intellectual work.

The two verticals underneath that top bar are, first of all, internal; and then second, external.  So, the internal stuff is really trying to help our community broadly define not just the law school, but the university, and to live up to its stated aspirations with regard to diversity, inclusion, and belonging, with reference to the best practices and the academic literature.  I mean both of those things, not just the academic literature that’s been published within the law and outside of the law, but also the practical experience that practitioners like yourself would bring to the table just by dint of your great experience in organizations.

Then the external-facing part of it is targeted engagement with various organizations, ranging from nonprofits to universities to corporations to law firms, and thinking about their diversity and inclusion issues from the same set of perspectives.  We don’t do anything that isn’t based in social science, or in the academic literature.

I should also say that we have events that are mostly open to the public in our speaker series.  Next year we are going to have Arlie Russell Hochschild, who wrote this great book, Strangers in Their Own Land: Fear and Mourning on the American Right.  We’re having Mahzarin Banaji, who wrote the book, literally, on unconscious bias.  We’re also having Anna Deveare Smith to talk about theater and how theater touches on issues of diversity, inclusion, and belonging.

The last thing I want to say about the Center and its external commitments is that the thing that we’re most excited about right now is thinking about the linkages between the academic literature and theater.  So we’re using acting troupes in order to bring the teachings and the lessons of this academic work to life.  So we’ll have seven actors simulate an actual team, and then they will stay in role for the whole time and improvise in an interactive way with the audience based on how the audience reacts to various scenarios that we’ve scripted for them.

Just to give you an example, let’s think about the Lumen-Cohen study, which you and I are both familiar with, which is, if you and I were to choose a police officer, unfortunately, we would be disproportionately likely to choose a man, regardless of credentials.  And whatever credentials he was strong in, we would say were the criteria of merit because we have an unconscious bias that most police chiefs are men, because most police chiefs that we’ve seen in our lifetimes are men.

If we were to change the criteria — in our scenario, it’s a law firm and the law firm is interviewing a man and a woman — we actually have the ability through theater to bring this home.  So in the first interview, the man has really strong academic credentials but has no practice credentials, and the woman is the opposite.  So we play that out.  And then the instinct is, “well, that wasn’t so unfair because the partners make a really good case for why they hired the guy because he had all these sterling academic credentials.”

But then, we’re able to replay the skit and we just flip the genders of the two parties.  So, now it’s a woman who has exactly the same academic credentials and the man who has the practice experience.  And some of the partners are talking about how practice experience is crucial.  “What you really need here is to hit the ground running, and that’s what we want.”

So you just see this in practice, and I think that really hits home in a way that simply presenting the study, even in a lecture format, would not.  And then, people are able to react to it and absorb it, and the say, “Okay, we get it now.  What’s the solution?”  The great thing about this Yale study is that it gives you the solution, which is that if you pre-commit, at least in the study, to the criterion of merit, which is, you and I would pre-commit ex-ante before choosing the police chief how much we believed academic credentials mattered and how much we believed experience mattered.  Or for choosing a new lawyer, how much we believe experience or field experience would matter.

Once you pre-commit, at least according to this one study, the gender bias not only diminishes, but it totally disappears.  So, imagine that times twelve, which is the kind of suite of offerings we’re doing along recruitment, retention, and then promotion.  And you get a really rich kind of tapestry of engagements with individuals where individuals are not just being talked at and being told the content of these studies and the solutions that we would derive therefrom, but are being given a chance to interact and to push back.

People are like, well, what if we push back and we say, “Oh, the criteria of merit here are going to be so abstract that it wouldn’t really have a pre-commitment binding effect”?  Or, alternatively, “That was just one study.  Have other studies been done in this area?”

That’s exactly the kind of engagement we want.  So far from trying to protect ourselves from that kind of engagement, we welcome it, and then the actors will respond in role.  Part of the brilliance of this is that the actors never break from their characters to say, “I’m actually this person” but, rather, will remain in that role for the duration of the presentation.

It’s a way of marrying the right brain and the left brain.  I think on the one hand, one of the reasons we’ve invested so much in data and in the scholarship is because there is a really strong kind of left-brain impulse that says, “No matter how compelling that story was, I can’t responsibly make policy based on one person’s compelling story, so I’m going to discount that story unless you show me it’s representative.”  So that’s what the data does.  Right?

But on the other hand, I think that people are moved to action not by being given reams and reams of data, but rather because a story just stays with them.  So if you can do both, if you can both give them a moving story through drama or theater or through the arts or through narrative or through literature, and also show that it is a representative story, which is what our data does, then that’s when you get the real right-brain/left-brain synergy that’s necessary to really move the ball forward.

JENNIFER BROWN:  Oh, my God.  I wish we could all attend all of those.  I know you probably do them individually for companies, right?  They’re never open enrollment for the public.  Is that true?

KENJI YOSHINO:  That is true.  Although, currently, actually one of our partnering law firms is very, very close to announcing that they are going to pay for the law school to do this.

JENNIFER BROWN:  Oh, wonderful.

KENJI YOSHINO:  To have it done for our students and that would sort of be open for the public.

JENNIFER BROWN:  That’s great.  That is fabulous.  Well, as a theater person and former opera singer, I so appreciate the synthesis of the hemispheres and the learning styles that the stage provides.  I just love that you’re doing that.

Kenji, thank you so much for bringing your voice to The Will To Change, and all of your knowledge.  You’re just such an inspirational leader and researcher, and you’re full of helpful information.

I just wish more people could spend more time with you, because anyone that’s in the room with you, learning from you, is truly privileged and entertained, too.  I just love it.  I always enjoy being on the stage with you, being in the audience.

I hope everyone reaches out and researches the Uncovering Talent report, which is available online and it’s for free.  I recommend it all the time and I talk about it in my book as well.  I quote Kenji and his co-author, Christie Smith, whom some of you may remember, we’ve already had on our podcast as well.  So, Kenji, we had a wonderful conversation with Christie, who’s also an incredible leader and role model within the LGBT community and way beyond.

Thank you very much for your time today.  We are going to be watching you closely and cheering you on.  Thank you so much for your advocacy and every way that you’ve made the world better for all of us.

KENJI YOSHINO:  Thanks so much, Jennifer, and right back at you.


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