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5Q: NYU Law professor Kenji Yoshino on 'covering' in the workplace

Kenji Yoshino

Kenji Yoshino had just landed his first teaching job post graduation at Yale Law School when he was faced with a critical, and intensely personal, dilemma.

“I will never forget how a very well-meaning colleague put his arm around me said, literally on my first month on the job, ‘You will do a lot better on the rise to tenure if you are homosexual professional than if you are a professional homosexual.’,” Yoshino said.

Cryptic for some, but Yoshino knew instantly what his colleague meant.

Yoshino came out while a student at the same university. He began writing about gay-rights issues and developed a passion early on for civil rights -- a hot issue in the United States.

As a professor, Yoshino understood he was being told to dampen that enthusiasm for what some might perceive as a fringe demographic or risk hurting his career. It was all fine and dandy to be the gay-rights defender in his off time, but, on the job, it was better to present himself as someone who better fit the social norm.

Years later, Yoshino, now 45 and a law professor at New York University, identifies that moment as life-changing. It was the catalyst for his groundbreaking research into what he now calls “covering” – something we all do to various degrees in the workplace to hide elements of our authentic selves in an effort to fit in with the dominate culture.

To some, it can be a matter of playing down their love for an extreme sport or hobby. It’s also press visible minorities to change their names, languages or cultural practices; encourage women to “play like men”; or force LGBT individuals to hide their sexual orientation.

Yoshino has spent more than a decade delving into the topic, including authoring a 2006 book called Covering: The Hidden Assault on Our Civil Rights and, more recently, a major corporate study of Fortune 500 companies in the United States. On Oct. 8, Yoshino is bringing his expertise to Toronto as the featured speaker at a gala event hosted by Catalyst Canada.

We tracked him down at his home in New York in advance of his Canadian appearance to learn more about the consequences of covering, and why employers should encourage full inclusion in the workplace.

I think even straight white men have a sense of not bringing their full self to the office. I was chatting with an extreme runner who mentioned the subtle pressure to fit in, not appear too eccentric, even on seemingly admirable things like diet or fitness. Does that count as covering?

I think you`ve put your finger on one of the key findings of the study and that is the real universality and the sense that there is not a cohort that is immune from covering. In the (recent) study, we found that 45 per cent of straight white men covered. Obviously that was an interesting statistic to us because, generally, straight white men are either lionized or demonized in the diversity-inclusion conversation, but however we treat them, they are treated as being outside the narrative as opposed to being inside. You mentioned extreme running, but belonging to a motorcycle group, with the various connotations that has, and being into ultimate fighting also came up. More common answers among straight white men included age – having to look younger by dying your hair or getting testosterone shots, or look older by wearing glasses. Another one would be religion and having to hide your faith. Another was veteran’s status. Those round out the top four.

It doesn`t seem like this is something we are discussing on a meaningful level yet. Where is the conversation at?

We are right at the beginning. I think that, until now, we`ve been focused (and I think this work is extremely worthy) on unconscious bias and the kinds of biases people expressed at work. I think of this of the yin to the yang of unconscious bias in that covering is what we do in order to pre-emptively stop other people from having their biases engaged against us. But I think I’m more hopeful about it than I am about unconscious bias, because when we are talking about unconscious bias we are still a little bit finger wagging. Even if I admit that I have unconscious bias, it is a still a negative attribute that I hold and it is something that I am told to get rid of. Whereas when we are talking about covering, it really is a universal project of authenticity. Who doesn`t want to be more authentic? Who doesn’t want to be able to stop managing their identity alongside their job? One of the phrases that we kept hearing over and over again in the survey is, ‘Wouldn’t it be a relief if I could focus on my job without having to manage my presentation all the time?’”

I suppose while some of us are covering consciously, for others it has just become a way of life.

Exactly. Once something becomes engrained it becomes completely reflexive so you will start to cover things without even knowing. A lot of the times we got responses on our survey where someone would say something like, ‘Yeah, I noticed that, as a woman, when I leave work to go take care of my children, I never mention that I am doing that. I just say that I am taking a meeting or I have my own doctor’s appointment but I never front my kids to my clients or my colleagues.’ We all know, intuitively or scientifically, through Shelley Correll great work on The Motherhood Penalty that women who have children incur a penalty at work whereas when men with children get a bonus. It seems completely “rational” for a woman to react this way in this environment, and, over a period of time, it becomes engrained.

What’s the ultimate goal of the survey, or, really, your research as a whole?

Our goal is really to hammer the term “covering” into the popular vernacular. Gloria Steinem once said that we couldn`t do anything about sexual harassment until we’ve found the words to describe the phenomenon and I think she is absolutely right about that. In corporate America you can’t manage what you can’t measure. What we are trying to do with the survey is not only create statistical data that people can measure their progress on longitudinally, but also provide qualitative data that gets people talking and gets this word in the vocabulary in the way “unconscious bias” is, at least in our circle.

You call covering the second generation of workplace discrimination. Can you explain that?

In employment discrimination cases, if I get fired for my ethnicity or skin colour, or if a woman gets fired for having two X chromosomes, they are going to win a lawsuit. But I was curious about what would happen if employers asked people to cover and an employee refused to do that and they got fired. Would there be any redress? My suspicion, based on the cases that I already had at my fingertips, is that there would be no redress and, in fact, that is what I found. The first generation of this entire project, back in 2002, when I wrote a 170-page law review, was just going through cases by case by case and saying, ‘Look, if you are fired for your skin colour then you are protected, but if you are fired for wearing your hair in corn rows, an actual case, and the civil law suit proves in the court that this was something you could change -- It`s behavioural. It`s not immutable. You have discretion over it -- then the idea that you can change shifts very quickly in the climate to you must change. Same for language: If you are fired for being of a certain national origin, you win, but if you are fired for speaking Spanish in an English-only workplace, at least at the time when I was writing that article, you didn`t have much redress under the law. If you are fired for being chromosomally a woman, you win but if you are fired for being a mother or engaging in stereotypically “feminine behaviour”, like crying at work or being overly emotional, you are not going to have a claim.

I think that the nature of discrimination under the law is shifting. It once was if you belong to a particular group you were protected. But that is not really how discrimination or bias operates in 2014. It operates much more in a sense of if you belong to a majority group or if you belong to a minority group and are willing to assimilate then you are protected. But if you take any pride or affiliation in your difference, stand your ground, then you are going to be much more vulnerable.

It shocks me that people are still being fired for expressing who they are at work. Is that really happening?

I want to be careful here because I think that, at least locally, there are certain things that have happened where people have tried to change the default. But, broadly, the default is still behavioural attributes related to a protected group are not protected, even if the immutable aspects of the identity are – like wearing your hair in corn rows. There have been attempts (in the U.S.) by the Obama administration. You will see guidelines that say if you have an English-only workplace that says people can be fired for lapsing into language other than English and there is no give in that policy -- like you can do it during your break, or if a client addresses you in that language or if you are speaking to your family – then that would presumptively treated as disparate treatment on the basis of national origin. There are also some motherhood cases now where people say discrimination against mothers is discrimination against women because fathers are not treated the same way. It`s not a doom and gloom story, necessarily, but the interventions are the exceptions that prove the rule.

What is the attitude in the corporate world for encouraging authenticity, as you define it?

There is a deep, deep appetite for this right now and part of it is, and I hope this doesn`t sound Pollyanna-ish, but people are people. A lot of people in corporate America, despite the negative rap that corporate America gets, really care about these issues on purely moral grounds. But there are other drivers as well like the legal driver and market driver. Fortunately we are living in a time where the business imperative and the moral imperative are running in the same direction. And the legal imperative is as well, though perhaps it is lagging a little bit. The reception among the corporations has been unbelievable. People are really, really hungry to think about how to apply this idea to their organization. I can’t keep up with the number of invitations that I have gotten to come talk about this. Because of the reach of corporations and because of their power once corporate America wants to get this done. It will get done. I am putting a lot more faith in the corporations and organizations to get this idea into the culture than I am in the courts and the legislature.

This is kind of a dense topic, with many possible conversations to take away from it, what point really hits home to corporate America?

I’m thinking about Katherine Phillips’ work for Scientific American where she is talking about how diverse teams are really correlated to high value for the company in the Fortune 500. What I want to add with our work is: Are you fully leveraging your diversity? Nobody thinks that their team is better simply because people of different skin colour are sitting around the table. The skin colour is a proxy for diversity of experience, diversity of thought – that makes people better in terms of arriving at solutions. So to what extent are you shooting yourself in the foot as an organization if we can have a black person and an Asian person and a white person and a Latino person around the table, but we are going to make everyone who isn`t white cover their differences and to meld into the ideal of what it means to be a worker. It seems to me that if what you are really trying to achieve is difference then you would not want people to downplay their differences.

What do we stand to lose if we can`t move forward on this?              

The danger is balkanization -- that as we become more and more diverse, people are just going to hunker into their own demographic groups. In a really impressive study of 41 communities, (Harvard political scientist) Robert Putnam discovered that the more ethnically diverse a community was, the more people would just hunker in like turtles, that is his phrase, and not associate with anybody. Distrust of other group was much higher, but distrust of your own group also went up. We need something to counteract that tendency of balkanization, something that is going to be a direct outgrowth of the fact that we are both more diverse and we perceive ourselves as more diverse. To be able to say ‘Yes, I am gay. I am Asian. But I am a human being first and we, as human beings, all engage in these strategies to fit in. So instead of using strategies against each other, let’s find the common-ground and then go to discuss the differences.