Driving Out Diversity: How We Build In Obstacles to Hiring and Promotion of Diverse Attorneys...
Driving Out Diversity: How We Build In Obstacles to Hiring and Promotion of Diverse Attorneys, Why We Should Change, and How We Can Get Started.
Danny M. Howell, Esq.
There are a host of different definitions of Diversity, Equity and Inclusion (“DEI”). The University of Washington has developed definitions that are arguably a little clearer than most:
* Diversity is the presence of differences that enrich our workplace. Some examples of diversity may include race, gender, religion, sexual orientation, ethnicity, nationality, socioeconomic status, language, (dis) ability, age, religious commitment, or political perspective in our workplace.
* Equity is ensuring that access, resources, and opportunities are provided for all to succeed and grow, especially for those who are underrepresented and have been historically disadvantaged.
* Inclusion is a workplace culture that is welcoming to all people regardless of race, ethnicity, sex, gender identity, age, abilities, and religion and everyone is valued, respected and able to reach their full potential.
Obstacles to diversity in the legal profession are to a degree structural and bias-driven. As we gain awareness of the many benefits of diversity, equity and inclusion in our field, we increasingly face the need to examine how the structure of our firms’ approaches to hiring, management, promotion, etc., can impede or facilitate change.
A. Who We Keep Out (Or Force Out)
We are among the least diverse industries in the United States. This is especially true where it counts the most: at the top. Firm leadership overwhelmingly consists of white men relative to white women and racial, LGBTQ+ and disability minorities of any gender identity. (ABA Commission on Racial and Ethnic Diversity in the Profession 2020 ABA Model Diversity Survey Report). While statistically we are a more diverse profession at the level of law firm associates, the numbers dwindle steadily at the level of senior associates, income partners and equity partners. There is, arguably, a weeding out process, driven by unconscious bias, that is structural and that ensures that over time, the profession drives out diversity.
In 2022 81 percent of all attorneys in the United States were white (nationally, non-Hispanic white persons make up 60 percent of the population). African American attorneys were 4.5% of the profession in 2022, far less than the percentage of African American people in the U.S. population (13.4%). The percentage of Hispanic attorneys in 2022 was 5.8%, whereas the percentage of the U.S. population that was Hispanic in 2022 was 18.5%.
The true story of non-diversity in law firms is told at the top: over 25% of law firm associates are minorities; but that number drops to 9% at the equity partner level for all attorneys of color, and only 3% for women of color. Meanwhile, minority males and females consistently range between 0% to 2% of the top 10% of the highest-paid attorneys in law firms (2020 ABA Model Diversity Survey Report).
In 2022, among the 44 state bars that track gender in the profession, 38.3% of all lawyers were women and 61.5% were men.
Again, gender disparity in private law firms becomes clearer at the top: About half of all law firm associates are women; but only 25 percent of law firm partners are women. Of America’s top 200 firms in size, only 16% of equity partners were women; and only 4% of all managing partners were women.
It has been estimated that approximately 5.6 percent of the population identifies as LGBTQ+. According to the most recent diversity report by the National Association for Law Placement, approximately 2.9% of all attorneys in the U.S. identify as LGBTQ+. Among law firm associates, 5.4% identified as LGBTQ+. At the partner level, that figure fell to 2.3%.
Affinity bias -- our tendency to connect with others who share similar backgrounds, beliefs and interests -- can drive us to hire and promote persons who are members of our “In-Group”; and this can include persons who share our religious beliefs.
Affinity bias may lead to us deciding not to hire an applicant because they observe the Sabbath on Saturday; negatively assessing an employee for missing work due to a religious holiday; promoting someone because they share the same faith as the controlling “in-group”; reassigning someone to a position with less client contact because we think their hijab makes people uncomfortable.
In 1980 the average age for an attorney in the U.S. was 39. By 2021, that figure had risen to 46.5. Older attorneys without portable business are often unemployable in traditional law firm settings, whether out of a perception that the attorney may retire, have health problems, be too rigid to learn new methods or unwilling to work long hours, or pose a risk of age discrimination claims, or simply by virtue of affinity bias.
Unconscious and conscious biases cause law firms to be less likely to hire attorneys with children or adults for whom they are caretakers, often assuming that the attorney’s focus would be drawn away from work and toward the attorney’s caregiver responsibilities. Law firms create structural barriers to the employment of attorneys whose responsibilities as parents or caretakers of older adults require a flexible schedule and support from colleagues.
7. Neurodiverse Persons
Neurodiversity is the idea that cognitive conditions, such as autism, ADHD, dyslexia and dyspraxia, are natural variations in the way people think and process information. The term recognizes both the difficulties that people who have these conditions may encounter in the workplace and also the unique strengths that can derive from thinking differently.
According to a report from the National Association of Law Placement, only 0.53% of attorneys self-reported as having a disability. Autistic adults generally have the lowest overall employment rate among all disabled people.
A 2020 report by the Institute of Leadership & Management revealed that half of managers (50%) admit they would be uncomfortable hiring a neurodivergent individual. The highest level of bias was against employees with Tourette’s syndrome and ADHD – 32% of businesses saying they would be uncomfortable employing or managing someone with either of those conditions -- followed by 26% for autism, 19% for dyspraxia, and 10% for dyslexia.
8. Socioeconomic Background
While it is a neglected area of research, attorneys from impoverished backgrounds can attest anecdotally to socioeconomic bias as a barrier to entry into the profession and to promotion in private practice. Affinity bias makes it less likely that attorneys from upper middle class backgrounds who attended top tier law schools will choose to recruit or consider candidates who went to schools or came from regions of the country associated with poverty.
In this regard, it is noteworthy that in late 2022, Harvard, Yale, and Berkeley Law Schools ceased participation in the U.S. News and World Report’s Best Law Schools rankings, with the deans of Yale and Berkeley Law Schools citing the ranking’s role in exacerbating inequalities between law schools and discouraging lower income students from pursuing law school.
9. Lawyers with Disabilities
In 2022, just over 1 percent of all lawyers at law firms report having disabilities. People with disabilities represent a quarter of the Unites States population. However, attorneys with disabilities face a host of barriers in getting and keeping a job due to stereotypes, biases, and discrimination regarding their ability to work.
10. Mental Health Conditions
It is illegal for a law firm of 15 employees or more to discriminate against someone simply because they have a mental health condition. This includes firing them, or rejecting them for a job or promotion. Like any other employer subject to the Americans with Disabilities Act, a law firm cannot rely on stereotypes about someone’s mental health condition when deciding whether they can perform a job. However, just as in the case of attorneys with physical disabilities, attorneys who disclose significant mental health conditions confront major barriers to employment and advancement in the legal profession.
B. How We Keep People Out
1. How We Recruit
The legal industry has historically exhibited “elite school bias”, i.e., the conscious or unconscious subjective belief that people who go to elite schools must be smarter and better. Being unwilling to recruit from other schools, including historically black law schools and other schools documented as being more diverse, is one way to keep the door shut on diversity.
At the lateral level, recruiting through traditional advertising, headhunters, and word of mouth reinforces existing biases against diversity. A more diverse talent pool may utilize less traditional means of seeking out positions, such as job boards and online services like Zip Recruiter and Indeed.
2. How We Structure (Hours and Workload Flexibility)
If you are handicapped or neurodiverse, or if you have children or adult dependents at home, the unavailability of positions with law firms that offer hour and workload flexibility is itself a barrier to employment.
3. How We Interview
Implicit bias permeates the interview process -- starting with name biases. If you are named John, you will have a significant advantage over Jennifer when applying for a position, even if you both have the exact same credentials. If your name is José, you will get more callbacks if you change it to Joe. And if you’re named Emily or Greg, you will receive 50% more callbacks for job interviews than equally qualified applicants named Lakisha or Jamal. K. Nalty, Strategies for Confronting Unconscious Bias, 45 The Colorado Lawyer 45 (May 2016).
4. How We Compensate
If unconscious bias leads us to provide in-group law firm associates with the best assignments that produce the highest “billed and received” numbers, this will produce a superficially “objective” indicator that leads to higher compensation for in-group members.
At the partnership level, compensation may depend to a greater degree on subjective components which contribute to bias against underrepresented groups.
5. How We Supervise
Affinity bias can make us poor supervisors, implicitly preferring to provide mentoring to members of our “in-group” and ignoring an “out-group” attorney.
6. How We Mentor
In a traditional mid-size or larger firm, survival as an associate often hinges on finding a mentor, a partner who can run interference and help make sure the associate receives work opportunities that promote advancement.
Affinity bias leads partners who are in-group members to prefer mentoring other in-group members. Not providing out-group attorneys with mentors is the first step toward showing them the door.
7. How We Evaluate and Promote
Subjective, bias-driven evaluation criteria drive stakes into the heart of diversity.
In one study of a mid-size firm, only 9.5% of people of color received mentions of leadership in their performance evaluations — more than 70 percentage points lower than white women.
8. How We Train
Law firms that provide no training on diversity and unconscious biases, or that provide the wrong kind of training, send an implicit message to employees and managers that the negative impact of unconscious bias will not be challenged and that change in this regard is unnecessary.
9. How We Message (Internally and Externally)
Law firms are defined from on high. The lack of messaging from firm leadership that we welcome the differences among us confirms to the entire firm that unconscious biases are tolerated or even encouraged.
10. How We Grow
We reinforce existing biases in the ways we seek to grow. Traditional means of advertising and traditional means of growth through mergers and lateral recruitment reinforce the lack of diversity if they are driven by existing biases against employing persons who are different from us.
C. The High Cost of Lack of Diversity
1. Competitive Disadvantage
Consider the following from “Diversity Wins: How Inclusion Matters”, McKinsey & Company, May 19, 2020 (available at https://www.mckinsey.com/featured-insights/diversity-and-inclusion/ diversity-wins-how-inclusion-matters#/ (last visited May 7, 2023): Corporations that embrace gender diversity on their executive teams were more competitive and 21% more likely to experience above-average profitability.
“There is substantial research to show that diversity brings many advantages to an organization: increased profitability and creativity, stronger governance and better problem-solving abilities. Employees with diverse backgrounds bring to bear their own perspectives, ideas and experiences, helping to create organizations that are resilient and effective, and which outperform organizations that do not invest in diversity.” V. Eswaran, “The Business Case for Diversity Is Now Overwhelming”, available at https://www.weforum.org/agenda/2019/04/business-case-for-diversity-in-the-workplace/ (last visited May 7, 2023).
Why? In the case of gender diversity, a 2015 Pew Research Center survey listed numerous areas where women were stronger in key areas of both politics and business, including:
* 34% better at working out compromises
* 34% more likely to be honest and ethical
* 25% better at mentoring
In the context of an industry as non-diverse as the practice of law, it is often the case that our clients are significantly more diverse than we are. A diverse firm has a competitive advantage in attracting and keeping diverse clients.
Making life miserable for our employees is not a good business plan. We pay the price in wasted dollars on recruitment and training, as well as reduced productivity from employees whose energy can quickly shift from work to lateralling.
The biases that drive non-diversity also drive bad decisions that can expose law firms to bar complaints, EEOC investigations, and lawsuits for Title VII or ADA violations, or malpractice suits.
D. How We Change as a Firm or Organization
1. How We Message
More than words, the active involvement of firm leadership in diversity and bias training initiatives sends a clear message throughout the organization that the firm is committed to combatting the negative effects of bias in recruitment, hiring, and promotion.
Due to a mental blind spot called emotional contagion, we tend to adopt the perspectives of those we see as authority figures. With their guidance, we can overcome the effects of bias; without it, we will continue to exhibit unconscious bias in ways that are harmful to our businesses.
It is up to authority figures to provide the guidance in promoting diversity and combatting bias, and by more than just the adoption of policies and procedures. Leadership’s perspective has to be demonstrated as an everyday way of doing business – direct involvement in training and education, constant messaging reinforcing the business’ commitment to achieving diversity and celebrating that achievement by sharing with everyone the positive impact on morale, retention, marketing, creative thinking and improved profitability.
2. The Positions We Hire For
Fundamentally, the more we can be open to flexibility in terms of hours, schedules, and working off site, the more we can attract and retain diverse employees. Attorneys who have family responsibilities with children or adult dependents may prefer flexible working hours and locations to be available to attend to often unpredictable family needs. Handicapped or neurodiverse employees, or employees with mental health problems, may need a similarly flexible schedule to accommodate medical or therapy appointments. These attorneys may pass on firms with a strict full-time, billable hour model in favor of a firm that offers this needed flexibility.
3. How We Train
A growing body of research suggests that much traditional diversity and bias training does not work very well. Making sure you use research-supported training both increases the effectiveness of that training and -- because such training is likely to be more comprehensive and hands-on than a one-off, lecture-style session -- reinforces to everyone the importance the firm places in diversity and combatting bias.
So what works? Consider these methods described in “Two Types of Diversity Training That Really Work” (Harvard Business Review, July 28, 2017, available at https://hbr.org/2017/07/two-types-of-diversity-training-that-really-work?registration=success):
* Perspective-Taking - essentially the process of mentally walking in someone else’s shoes. An experiment involving 118 undergraduate students “showed that taking the perspective of LGBT individuals or racial minorities — by writing a few sentences imagining the distinct challenges a marginalized minority might face — can improve pro-diversity attitudes and behavioral intentions toward these groups. These effects persisted even when outcomes were measured eight months after training. Even more exciting is the fact that perspective-taking was shown to be capable of producing crossover effects. In our experiment, taking the perspective of LBGT individuals was shown to be associated with more positive attitudes and behaviors toward racial minorities, and vice versa.”
* Goal Setting. This strategy — more broadly used to motivate improved aspects of someone’s job performance — “can be successfully adapted by asking diversity training participants to set specific, measurable, and challenging (yet attainable) goals related to diversity in the workplace. For example, a trainee might set a goal to challenge inappropriate comments about marginalized groups when overhearing them in the future (in combination with receiving information about how best to handle such situations). Our experiment with 158 undergraduate students showed that goal setting within diversity training led to more pro-diversity behaviors three months after training and improved pro-diversity attitudes nine months after training.”
In the context of bias training, studies that shown that bias training can be more effective if it takes place over a longer period of time and if it makes clear that combatting bias is a job for the entire firm or organization, not just the individual.
E. What We Can Do Individually
Expanding Your Circle
Actively seek out cultural and social situations that are challenging for you—where you are in the distinct minority or are forced to see or do things differently. Expanding your circle entails seeking out and making direct contact with counter-stereotypes by increasing your exposure to stigmatized group members that contradict the social stereotype at hand. Expanding our circle can be difficult and uncomfortable, however research shows that having positive, meaningful interactions with out-group members is a powerful form of reducing implicit bias.
“I M P L I C I T”
An August 16, 2019 article entitled “Eight tactics to identify and reduce your implicit biases”, from “Quick Tips”, a blog of FPM (formerly Family Practice Management, a peer-reviewed journal published by the American Academy of Family Physicians), described the following eight tactics, which spell out “IMPLICIT,” to help recognize and mitigate our own implicit biases:
Introspection: Identify your own biases prejudices, possibly through use of Implicit Association Tests as well as other means.
Mindfulness: take advantage of mindfulness therapy to reduce the stress that pressures us to rely on biases to handle information overload. Moreover, research shows that mindfulness breaks the link between past experience and impulsive responses, which can reduce implicit bias.
Perspective-taking: Actually spend time with people who are more frequently stereotyped, ask questions, and try to listen non-judgmentally. Mentor people who are different from you in one or more dimensions and take the opportunity to learn about their experiences and ideas.
Learn to slow down: Before you extend your circle, take some quiet time to admit that you operate by being biased, reflect on how those biases impact your decisions, attitudes and treatment of others, and develop a role model of behavior you want to emulate.
Individuation: Evaluate people based on their personal characteristics rather than those affiliated with their group.
Check your messaging: Give up being color/gender/age blind. It isn’t true, to start with; and research shows that believing you are blind to people’s differences actually makes you more biased. Instead, actively message that we welcome the differences among us.
Institutionalize fairness: Give visible and constant support to having a culture of diversity and inclusion.
Take two: Commit to combatting bias every day, acknowledging that you will make mistakes and fall short, but that every tomorrow offers a new opportunity to get it right.
Need help getting started? We can help law firms develop a strategy for change that works for your organization. Give us a call, or email us at firstname.lastname@example.org.  See https://www.washington.edu/research/or/office-of-research-diversity-equity-and-inclusion/dei-definitions, last visited May 7, 2023.  Danny Howell is the founding member of Howell & Rowlett PLLC, a six-attorney firm in Vienna, Virginia. Danny has represented attorneys in professional liability and ethics matters in Virginia, Maryland and the District of Columbia for over 30 years. He is a frequent lecturer and instructor on diversity and bias in the legal profession and is a past Fellow of the National Institute for Teaching Ethics and Professionalism.