The legal profession supplies presidents, governors, lawmakers, judges, prosecutors, general counsels, and heads of corporate, government, nonprofit and legal organizations. Its membership needs to be as inclusive as the populations it serves.
Part of the problem is a lack of consensus that there is a significant problem. Many lawyers believe that barriers have come down, women and minorities have moved up, and any lingering inequality is a function of different capabilities, commitment and choices.
The facts suggest otherwise.
Women constitute more than a third of the profession, but only about a fifth of law firm partners, general counsels of Fortune 500 corporations and law school deans. The situation is bleakest at the highest levels. Women account for only 17 percent of equity partners, and only seven of the nation’s 100 largest firms have a woman as chairman or managing partner. Women are less likely to make partner even controlling for other factors, including law school grades and time spent out of the workforce or on part-time schedules. Studies find that men are two to five times more likely to make partner than women.
Although blacks, Latinos, Asian Americans and Native Americans now constitute about a third of the population and a fifth of law school graduates, they make up fewer than 7 percent of law firm partners and 9 percent of general counsels of large corporations. In major law firms, only 3 percent of associates and less than 2 percent of partners are African Americans.
The problem is not lack of concern. I recently surveyed managing partners of the 100 largest law firms and general counsel of Fortune 100 companies. Virtually all of the 53 participants in the study said diversity was a high priority. But they attributed the under-representation of minorities to the lack of candidates in the pool. And they explained the “woman problem” by citing women’s different choices and disproportionate family responsibilities in the context of a 24/7 workplace. As one managing partner put it, “You have to be realistic. It’s a demanding profession. . . . I don’t claim we’ve figure it out.”
Such explanations capture only a partial truth. Minorities’ under-representation in law school does not explain their disproportionate attrition in law firms. And even women who work long hours and never take time out of the labor force have a lower chance of partnership than similarly situated men. Moreover, although data on women’s desires for partnership is lacking, what the research on women’s leadership preferences generally does not show is substantial gender disparities. In law, women experience greater dissatisfaction than men with key dimensions of practice such as level of responsibility, recognition for work and chances for advancement.
Moreover, substantial evidence suggests that unconscious bias and exclusion from informal networks of support and client development remain common. Minorities still lack the presumption of competence granted to white male counterparts, as illustrated in a recent study by a consulting firm. It gave a legal memo to law firm partners for “writing analysis” and told half the partners that the author was African American. The other half were told that that the writer was white. The partners gave the white man’s memo a rating of 4.1 on a scale of 5, while the African American’s memo got a 3.2. The white man received praise for his potential and analytical skills; the African American was said to be average at best and in need of “lots of work.”
Women are subject to a double standard and a double bind. A cottage industry of research suggests that what is assertive in a man seems abrasive in a woman, and female leaders risk seeming too feminine or not feminine enough. They may appear too “soft” or too “strident – either unable to make tough decisions or too pushy and arrogant to command respect. Mothers, even those working full-time, are assumed to be less available and committed, an assumption not made about fathers.
So, too, women and minorities are often left out of the networks of mentoring and sponsorship that are critical to career development. In American Bar Association research, 62 percent of women of color and 60 percent of white women, but only 4 percent of white men, felt excluded from formal and informal networking opportunities. Such networking is often crucial to building client and collegial relationships that are essential to advancement.
To address these issues, legal organizations need a stronger commitment to equal opportunity, which is reflected in policies, priorities and reward structures. Leaders must not simply acknowledge the importance of diversity, but also hold individuals accountable for the results. The most successful approaches generally involve task forces or committees with diverse members who have credibility with their colleagues and a stake in the outcome. The mission of those groups should be to identify problems, develop responses and monitor their effectiveness. Mentoring programs and training in unconscious bias are equally important.
As an ABA Presidential Commission on Diversity recognized, assessment should be a critical part of all diversity initiatives. Leaders need to know how policies that affect inclusiveness play out in practice. That requires collecting both quantitative and qualitative data on matters such as advancement, retention, assignments, satisfaction, mentoring and work/family conflicts. For example, although more than 90 percent of American law firms report policies permitting part-time work, only about 6 percent of lawyers actually use them. Many women believe, with good reason, that any reduction in hours or availability will jeopardize their careers. Those who take reduced schedules often find that their hours creep up, the quality of their assignments goes down, and they are stigmatized as “slackers.” That needs to change
Although bar leaders generally acknowledge the problem of work/life balance, they often place responsibility for addressing it anywhere and everywhere else. Clients get much of the blame. Law is a service business, and expectations of instant accessibility reportedly make reduced schedules difficult to accommodate. Yet the problems are not insurmountable. The evidence available does not indicate substantial resistance among clients to reduced schedules. They care about responsiveness, and part-time lawyers generally appear able to provide it. In one recent survey of part-time partners, most reported that they did not even inform clients of their status and that they adapted their schedules to fit client concerns.
Most important, lawyers need to assume personal responsibility for professional changes. They can support workplace initiatives and expanded efforts to increase the pool of qualified minorities through scholarships and mentoring. To make all these reforms possible, they must not be seen as “women” or “minority” issues, but as organizational priorities in which everyone has a stake. The challenge is to create that sense of unity and to translate rhetorical commitments into daily practices.