Abstract

Excerpted From: Lisa M. Fairfax, Racial Rhetoric or Reality? Cautious Optimism on the Link Between Corporate #BLM Speech and Behavior, 2022 Columbia Business Law Review 118 (2022) (367 Footnotes) (Full Document)

In the wake of the murders of George Floyd, Ahmaud Arbery, Breonna Taylor, and other unarmed Black people at the hands of police, the summer of 2020 saw America's cities erupt in protest and calls to dismantle racist policies and practices aimed at Black people. The protest reignited the “Black Lives Matter” movement, a movement protesting police brutality and racially motivated crimes against Black people, which began in 2013 in response to the murder of Trayvon Martin, an unarmed seventeen-year-old Black teenager. Protests around police killings of unarmed Black people included calls to dismantle racist and biased practices in the criminal system and throughout all levels of society.

One of the ways corporations responded to these calls was with a virtual flood of statements professing to support the Black community, expressing a rejection of racism, intolerance, bias, and bigotry, and pledging to help eradicate racist policies and practices both within their own institutions and the broader society. Original research done by this author reveals that as of August 2020, 86% of Fortune 100 companies and 66% of Fortune 500 companies released such statements. Illustrative of such statements, Harley-Davidson insisted: “Racism, hate or intolerance have no place at Harley-Davidson. We stand in solidarity with our Black colleagues and riders, as we condemn acts of racism and bigotry of any kind .... United we will ride.” Some corporations used their respective platforms to denounce silence; Netflix stated: “To be silent is to be complicit.” Finally, corporations released statements committing to actively work against racist policies and practices, with statements ranging from open-ended promises to concrete commitments. For example, Johnson & Johnson issued a statement, declaring “[W]e must do more. And we must do it now.” Johnson & Johnson also released a list of action plans aimed at tackling racism and discrimination within its own company.

Many commentators viewed the deluge of corporate statements with skepticism, if not outright hostility. As one New York Times article stated, “[M]any of the same companies expressing solidarity have contributed to systemic inequality, targeted the [B]lack community with unhealthy products and services, and failed to hire, promote, and fairly compensate [B]lack men and women.” Some viewed the statements as “cheap talk”--a way to express a vague commitment without taking concrete action. Others viewed the statements as marketing ploys--a way to attract consumers and other market participants aligned with the Black Lives Matter movement. Still others viewed the statements as hypocritical. According to this view, corporate America has benefitted from, maintained, and facilitated systemic racism--and thus corporate statements condemning racism ring hollow.

Relying on original empirical research, this Article refutes critics and argues that such research demonstrates that corporations that issued statements in the summer of 2020 have in fact made efforts to follow through on their promise to promote diversity and work to combat racism within the corporate sphere. Importantly, the empirical research pays particular attention to corporate actions related to Black individuals. To be sure, corporate statements included mention of other groups, especially other people of color. However, because corporate statements reflected a response to the Black Lives Matter movement, those statements not only expressed support for Black individuals, but also expressed particular commitments to Blacks. Hence, any effort to refute criticism of those statements must especially focus on corporate actions specifically aimed at Blacks.

This Article advances three critical arguments about the deluge of corporate statements issued in the summer of 2020. First, this Article argues that such statements can be viewed as corporate commitments to actively work against discrimination and racism, and thus can be characterized as an example of antiracism. For purposes of this Article, the terms “antiracism” or “antiracist” as applied to speech are used to capture three core concepts. First, such speech denounces racism, bigotry, and discrimination. Second, such speech repudiates silence. The final and quintessential element is that such speech embodies a commitment to actively work to dismantle discriminatory policies and practices or otherwise to actively promote diversity and inclusion. This Article's empirical survey of the corporate statements issued in the summer of 2020 reveals that such speech has all three of these hallmarks. In this regard, this Article uses the term “antiracist” to characterize these corporate statements to reflect the fact that the vast majority of corporate statements included promises by corporations to proactively work against racism and improve diversity, particularly within their own corporations.

Second, this Article is an optimistic and contrarian one. In stark contrast to predictions from the many commentators who sharply criticized and dismissed the potential impact of corporate statements, this Article asserts that such blanket denunciation has proven inappropriate. On the one hand, this Article points out that corporate statements condemning racism and affirming the importance of Black lives have important and beneficial normative implications irrespective of their behavioral impact. On the other hand, this Article draws upon an original empirical survey to demonstrate that, on the first anniversary of these corporate statements, many corporations that issued such statements began to follow through on their commitments, at least with respect to increasing the presence of Blacks and other people of color on their boards. This research suggests that corporate statements dramatically influenced corporations' willingness to take actions aimed at increasing diversity and ameliorating the impact of racism. This research thereby discredits the notion that these corporate statements should have been blanketly dismissed as merely cheap talk or opportunistic rhetoric. Rather, it posits that critics were too readily dismissive of these statements' importance and potential impact.

Finally, however, this Article sounds a note of caution about the overall and long-term impact of these statements on the corporate effort to promote diversity and eradicate discrimination within the economic sphere. While this Article's survey suggests real promise about corporations' willingness to follow through on their commitments, there are nonetheless challenges ahead that could undermine or impede the progress illuminated by this Article's study. For example, it may be that board diversity is not a good indicator of corporate efforts to promote diversity or otherwise tackle discrimination, particularly with respect to other aspects of the corporate and economic environment. At the very least, board diversity is just one of many actions that corporations need to take, and it is too soon to tell if corporations will focus on efforts that include other critical actions, such as working to create a more diverse and inclusive workforce or otherwise working to ensure that corporate policies do not have a negative impact on Blacks and other vulnerable communities. There also are serious structural and substantive limitations to enhancing board diversity that may undermine continued progress in this area. Additionally, we now appear to be in a different moment. In the summer of 2020, polls revealed historically unprecedented consensus among all races about the level of discrimination faced by Blacks and other people of color as well as the need to take action to ameliorate that discrimination. As a result, corporations and society in general experienced intense internal and external pressure to make express commitments to tackle racism and follow through on those commitments. Two years later, both are experiencing serious backlash, including backlash with respect to efforts to improve board diversity. This backlash begs a serious question about whether corporations will remain willing to make substantive, meaningful, and long-term change with respect to diversity and inclusion in the economic sphere.

Part II introduces an original empirical survey of the corporate statements made by companies within the Fortune 500. This Article defines “antiracism” and “antiracist speech,” and then relies on that survey to demonstrate the manner in which the corporate speech that is the focus of this Article can appropriately be classified as antiracist. Part II concludes by identifying the most prominent arguments advanced by those skeptical of the value and impact of such statements. Part III evaluates the impact of these statements both normatively and behaviorally. Part III begins by highlighting the normative value of corporate statements. Part III then introduces a second empirical survey to assesses the extent to which corporations that published such statements have made progress with respect to board diversity in general, and with respect to the number of Black directors on their board in particular. Such survey illustrates the significant impact corporate speech has had on corporate reality, at least in terms of corporate progress on board diversity. Part IV sounds a note of caution by pinpointing some of the hurdles, both short-term and long-term, with ensuring that corporations will remain committed to translating their talk into action. Part V concludes.

[. . .]

On May 25, 2020, George Floyd, a forty-six-year-old Black man, was murdered when a white police officer knelt on Floyd's neck for eight minutes and forty-six seconds as Floyd, whose hands were handcuffed, and whose “offense” was passing a counterfeit bill, called for his mother and repeated the words “I can't breathe.” Three other officers participated in the murder. Two police officers helped restrain Floyd while the third actively prevented bystanders from intervening, as their fellow officer ended Floyd's life.

Protests erupted over Floyd's murder, which was caught on tape. Tragically, Floyd's murder was yet another in a long line of Black people killed at the hands of police--and on camera for the world to witness. Protesters called for Black lives to matter, demanded that we say the names of the victims of police killings, and pressed individuals and corporations to align themselves with the fight to end racial injustice. Protesters also called for an end to the silent acceptance of racist policies and practices in criminal law and the broader society.

In response, corporations have spoken. “We must not tolerate racial injustice.” “We have to respond clearly that racism, discrimination and hatred will not be tolerated.” “We stand together against racism and discrimination.” “We cannot operate as a civilized society when parts of our population feel marginalized, victimized or targeted just for who they are.” “There's no place for racism and bias in our lives, our communities or future.” “There must be a zero tolerance for racism.” “We do not tolerate racism.” “We reject racism, intolerance, and bigotry.”

In so doing, hundreds of corporations chose to reject silence. Eighty-six of the Fortune 100. Seventy-one of the Fortune 101-200. Seventy-one of the Fortune 201-300. Fifty-seven of the Fortune 301-400. Fifty of the Fortune 401-500. And countless other corporations and entities both large and small.

Hundreds more corporations remained silent. Exxon Mobil. Lockheed Martin. AutoZone. Valero Energy. Occidental Petroleum. Williams Sonoma. Costco. Oshkosh. Hertz. Dillard's. Publix Supermarkets. General Electric. Whirlpool. Tesla. Charles Schwab.

While critics have characterized corporate statements as meaningless rhetoric or hypocritical, this Article offers a different perspective. From a normative perspective, this Article first contends that it matters that corporations feel compelled to issue statements rejecting violence against Black people along with racist policies and practices. It matters because speech can serve as a powerful vehicle for expressing and confirming our aspirational ideas. It also matters because speech can serve as a source of affirmation for members of the Black community while enhancing the potential that sentiments rejecting racism are viewed as normatively preferable throughout the corporate eco-system. In this regard, we should be more concerned with Williams Sonoma, Auto Zone, Oshkosh and the hundreds of other Fortune 500 corporations that have chosen silence, and hence could not even be bothered with at least projecting the appearance of rejecting racism.

Relying on an original empirical study, this Article also demonstrates that these corporate statements matter because they actually positively influenced corporate behavior. Empirical research demonstrates that the issuance of corporate statements was linked to an increased likelihood that corporations would appoint Black directors and other directors of color at a rate far greater than previous years and at a rate far greater than corporations that did not issue corporate statements.

This Article is optimistic, but only cautiously so. This Article does not seek to suggest that board diversity alone will address the many racial inequities that plague the economic sphere. This Article acknowledges the many hurdles that may impede efforts to diversify corporate boards. Perhaps more importantly, board diversity is just one of many steps that need to be taken to generate a more racially equitable corporate environment. This Article also does not seek to discount the efforts that must go into generating such an environment, and hence does not seek to equate board diversity efforts with corporations' willingness or capacity to respond to systems of bias and discrimination within their corporation or beyond.

However, this Article refutes the critics by revealing that corporate statements clearly served as an important catalyst for change associated with racial equity within corporate America. Those statements prompted corporations to begin the process of reducing racism and discrimination in the economic sphere and the broader society. Given the intractability of that racism and discrimination, this Article vehemently argues that it is important not to dismiss any tool that can be useful in this endeavor.

Presidential Professor, University of Pennsylvania Carey Law School.