Attorney on Law

Diversity, Equity and Inclusion (and Greatness)

As NYSDA moves to correct deficiencies in its makeup, it also pays homage to a fallen leader.

Lance Plunkett, J.D., LL.M.

This column was supposed to be about diversity, equity and inclusion, in keeping with the theme of the January edition of The Journal. However, sometimes tragic events intervene and history demands an initial focus on something else: greatness. In this case, it is the greatness of Dr. Mark Feldman.

NYSDA lost this extraordinary, unique leader on Thanksgiving Day—a terrible irony, but a reminder of things for which to be thankful. And all of NYSDA can be truly thankful for Dr. Feldman. I have known many great NYS- DA leaders over many years, and count a good number of them as dear friends, but Mark was a legend. His resume is unparalleled: treasurer and president at the local, state and national levels of the tripartite system; and executive director at both the state and national levels. No other person has ever served in all those capacities in the entire history of organized dentistry.

What really set Mark apart among leaders was his continual mission to make things better for his profession. Mark never wavered from trying to do what was best, right and just for dentistry and patients. Even if some effort did not succeed as he had hoped, that desire to do the right thing always remained his goal.

Coupled to his unmatched integrity and ever-present compassion and kindness for others, Mark was that rarest of things: a truly good man. As befitted his goodness, he cared deeply about the subject matter of this Journal—diversity, equity and inclusion—something he so much wanted NYSDA to embrace and improve. And so, he helped make possible the launch of NYSDA’s first-ever Task Force on Diversity and Inclusiveness in 2021.

Growing Impatience Diversity, equity and inclusion has become a major theme in law these days, as has the related topic of environmental, social and governance (ESG) corporate concerns. The concept of corporate responsiveness to larger social and ethical issues has been a matter of concern since corporations were first formed. However, there has been increasing attention to it lately, fueled by public impatience with the slow pace at which corporations have been moving on such matters and the confluence of perceived crises in climate, public health and racial/ethnic/gender equity. California has even enacted a law requiring that corporate boards provide seats for women and persons from underrepresented communities.

New York State has not gone so far yet, requiring only that for-profit corporations report on the number of women on their boards, leading to a study of the inclusion issue but no mandatory board membership requirements yet. California often legislates like it is demented, not infrequently later regretting choices made, whereas New York often legislates at a glacial speed, not infrequently defying expectations that the state lead the way on critical issues. It could be said that California gets things started, but New York gets things right.

Over a year ago, then incoming NYSDA President Craig Ratner asked what I would identify as critical issues for the Association. Number one on my list was diversity, and I noted that NYSDA was the only professional association I knew of that had no committee or task force even looking at diversity issues.

The word “diversity” hardly escaped anyone’s lips and those who looked at NYSDA leadership through the years could hardly jump for joy over any major diversity accomplishments. NYSDA even took a very long time to elect its first female president when other professional associations had already made that a fairly routine occurrence. NYSDA showed no awareness that entire months or other time periods were nationally devoted to honoring various diverse heritages, such as African-Americans, Women, Asian/Pacific Americans, Hispanics/Latinos, Older Americans, Jewish Americans, LGBTQIA Americans, Native Americans, Disabled Americans, and many others, even if only for a day. Many groups were identified specifically for health outreach and not just historical outreach. NYSDA basically ignored them all.

All that has changed now, with NYSDA forming its first task force devoted to diversity and inclusion. It is high time, because claims of discrimination and attention to health equity are skyrocketing, particularly during the COVID pandemic, when many people are on heightened alert about their personal and employment rights. Some might feel that NYSDA has been clueless about diversity, equity and inclusion, but the corporate reality is that when you have not had complaints and have a record of handling all governance matters evenhandedly, there is a tendency not to think of diversity as an issue because it doesn’t manifest as an immediate problem.

However, that is now seen as a form of complacency that is no longer societally acceptable. The legal picture in New York is bound to change in favor of greater emphasis and even mandatory requirements over diversity, equity and inclusion for corporations. Not-for-profit corporations like NYSDA are not a main focus in discussions on this topic because concerns with for-profit corporations are much greater (typically, the more money involved, the higher the stakes and priorities). But the trend to address diversity in corporate governance will eventually come to all business organizational structures.

A Plan for Action What can dental practices do about diversity, inclusion and equity? First, start thinking about it and make it a part of the general consciousness of the practice (even if no specific steps are required). Keep in mind that race and ethnicity are only a part of the diversity equation. Diversity also needs to address other protected classifications like sex, age, religion, disability status, gender identity and sexual orientation.

Second, make sure that any policies you adopt are clear and are applied consistently. Ambiguity and inconsistency are the enemies of diversity, inclusion and equity.

Third, do not mistake diversity, inclusion and equity with quotas and preferences. While quotas and preferences may be well-intentioned, they are likely to lead to other types of discrimination problems. These kinds of rigid prescriptive solutions tend to replicate the problems of a lack of diversity, inclusion and equity. In other words, tunnel vision and handcuffs do not equate to awareness and sensitivity.

Fourth, think about using available training programs on diversity, inclusion and equity issues. While there is no mandate yet on this subject, as there is with sexual harassment training, it may be useful to get ahead of the curve. It is not particularly difficult to incorporate such training into existing sexual harassment training. Periodically, the New York State Legislature floats bills to require dentists and other healthcare professionals to obtain such training, but those bills have never advanced.

Finally, some practices may consider using an artificial intelligence (AI) tool to help with recruiting, hiring and evaluating employees. AI can be used to factor in diversity, inclusion and equity as employment factors, but AI can also be a source of problems itself. This is a far more complex topic than can be addressed here, but nearly everyone agrees that you have to use AI employment tools with great investigation and circumspection. While an AI tool may seem to be objective and neutral on its face, it has been found that it may be designed with its own inherent biases that prove disastrous in practice. You may think you have the safety of machine-generated fairness only to find you have inadvertently installed embedded discrimination.

A Fitting Legacy The key takeaway from all of this is that just starting to think about diversity, equity and inclusion is an important first step; thought and awareness should precede action. Actions should be carefully thought through because there are no easy, quick-fix actions, but there are steps in the right direction that will help avoid going in the wrong direction, and will thereby promote attaining genuine diversity, inclusion and equity goals.

A great legacy for Dr. Mark Feldman is that through his innate love for his profession and his own personal goodness, he took those initial steps to start NYSDA down the path of diversity, inclusion and equity. To the very end, Mark had the vision and mission of a true hero and champion for dentistry. p

The material contained in this column is informational only and does not constitute legal advice. For specific questions, dentists should contact their own attorney.