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EXPERT OPINIONS AUGUST 10, 2020 ¦ 39

an institution out there that In any case, is this Oracle
doesn’t profess to value diver- matter relevant to entities like
sity and inclusion, even when law firms or non-public com-
its management is white and panies? You bet, says a Big
male? And in the aftermath of Law partner in Dallas who’s
the murder of George Floyd, been active in promoting di-
when companies and law firms versity. “This is a very creative
are tripping over themselves to way to force companies to
make the most heartfelt anti- clean their glass houses. I’m
racism statement, expect that not sure it’ll have the same
hypocrisy to crescendo. oomph for private companies
So what does the plaintiff in or firms but it all flows down-
Oracle want? “Data-driven re- hill so start with the top of
sults,” Katz and McIntosh write. the food chain—public compa-
They include replacing three nies.”
directors with minority direc- We’ve been using the The big question: Any chance
tors, instituting a $700 million carrot method for decades
this case will succeed? My
fund to promote diversity and to get corporations and law hunch: Hell no. I mean, if there’s
publishing an annual diversity firms to address diversity— liability for corporate hypocrisy,
report about the hiring, ad- and we know what that’s that’d be the end of American
vancement, promotion and pay capitalism.
equity of minorities at Oracle. gotten us: bupkis. If there’s But the Wachtell lawyers be-
Plus, setting specific quotas for one thing that’ll perk up
minority hiring over the next management’s ears, it’s lieve this case has the potential
five years and tying 30% of exec- liability. to be a game changer even if
the plaintiff fails: “The prem-
utive compensation to attaining ise of the lawsuit, and the relief
diversity goals. sought, are likely to provoke sig-
As you’d expect from a law nificant debate and some degree
firm that serves the mightiest of corporate titans, of change, regardless of the outcome of the litiga-
the Wachtell lawyers look askance at some of those tion.”
demands: For whatever reason, the Wachtell pair also
“Neither the adversarial process of litigation, sound quite hopeful about corporate commit-
nor the dictatorial posture of mandates, generally ment to diversity: “In the current moment, there
creates a highly productive relationship between a is a sense that U.S. corporations are more commit-
company and its investors. Quotas are a blunt in- ted than ever to increasing the diversity of their
strument, generally using demographic diversity boards and leadership. Each should have the lati-
as a proxy for true diversity.” tude to implement its own initiatives, as neither
I agree “quotas are a blunt instrument”—but I’d platitudes nor quotas will be adequate to achieve
argue that’s exactly the necessary medicine. While this goal.”
it sounds reasonable that boards and leadership Well, I agree platitudes won’t get us there. ¦
are in the best position to fashion their own diver-
sity initiatives, where has that taken us in the last Vivia Chen is a senior columnist at The Ameri-
two or three decades? can Lawyer and the creator of The Careerist blog.

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