TLF Brainstorm | Ep. 3 | Law firm diversity programs
What is TLF Brainstorm?
TLF Brainstorm is an opportunity for our community of legal forecasters to share their creative ideas in response to an interesting question about the role of the lawyer.
TLF Brainstorm is one part philosophical, one part creative, and most of all, it is a space to share new ideas.
Some of our responses may be genius and change the world forever, some may completely lacklustre, some may be riddled with typos (having been typed and sent through on someone’s mobile phone while on the bus). This is the beauty of TLF Brainstorm.
This episode’s question from Louise Ferris:
Overall I think the diversity and inclusion programs in law firms have delivered outcomes to a certain level. What they have achieved is continued conversation which is positive.
What I think we need to realise is that the power of the program is in the individuals that are within the program. The ability to create change and “shake the tree” rests with individuals and their willingness to show their character and competence in this area. To stand for something both in words and in actions especially when it is challenging the status quo takes courage and trust not something that comes easily.
I often have it said to me that the journey is as important as the destination and D&I programs have been part of that journey. Do I think as an industry we are moving away from just rolling out D&I programs in our organisations, yes I do and I think that this is the right course to be on.
Unfortunately, I do not have any detailed knowledge of the types of programs that law firms are implementing.
In saying this, looking across industry, a common theme is that successful incumbent firms look to harness diversity of thought.
Certainly, there is a risk that the focus is on achieving certain minimum acceptable percentages of representation in leadership roles of a particular gender (i.e. female), nationality, religion or sexual orientation.
Arguably, the focus on these specific outcomes is as dangerous for businesses as is focusing on profit as an outcome.
In other words, profit in the business is the outcome of doing a number of fundamental things right.
Similarly, diversity in leadership is the outcome of a culture that embraces fundamental concepts, such as Toyota’s ‘5 whys’ – i.e. challenging any issue, principle or tenet of a business with the question ‘why is it so’ five times.
Ultimately, our experience has been that until all forms of input related performance measurements are completely abandoned, there will be little, if any, true diversity of thought inside a firm, regardless of what numbers show up in the ‘diversity charts’ published in the Financial Review.
In my view, diversity programs are simply one of many “levers” which are available to be deployed in addressing problems of diversity within professional spheres. It is an important “hard power” lever in changing organisational behaviour, but without the support of other initiatives will be limited in its capacity to effect lasting change.
The Diversity issue exists. It is empirically provable by observing trends in industry and statistics clearly show that certain groups dominate certain spaces, where other groups are underrepresented. The question which this should provoke is, simple, “why?”.
Much like the potential strategies which can be deployed to address these imbalances, the explanation for them are multiplicitous and often opaque. Is it, as is often assumed, a product of the malicious powerful few exercising their power to restrict access to others (or at least, others who are “different”) to the spaces of power and influence they currently occupy? Or is it a subconscious tendency for certain people to want to surround themselves with people who are similar to themselves without thought to the potential motives for wanting to do so? Or, even still, are there certain groups of people who simply do not (or, sadly, cannot) participate in certain spaces? The answer, in my view, lies somewhere in the middle. There are some who wish to exclude others in an attempt to limit challenges to their occupancy of positions of power. Others demonstrate unconscious biases. And, quite simply, there are some members of groups which may be labeled ‘excluded’ who do not wish to join the space they are identified as being excluded from.
Diversity programs are important in changing organisational attitudes and behaviours. While a utopic society, equally balanced is a nice idea (and clearly something we do not have), transitioning to one is exceptionally hard. There will be those amongst the established power structures that are resistant to change and those amongst the marginalised who will not wish to upset the status quo. Regarding the latter, one issue of the transitory process is that the first member of a marginalised group to “break through” social barriers is then the sole representative of the “voice” of this group amongst the established power structures. While there are some who would embrace this opportunity, there are others who would not be comfortable embracing this mantle. Diversity programs have the important role of identifying advocates for certain groups and putting them in positions where they can drive change and where those who are less inclined to instigate change on their own behalf have a leader or beacon to look to for guidance. This change is, however, limited by the extent of support these hard shifts in the established power structure receive from other efforts to change perceptions and behaviours of those who wield established power.
For the purposes of the question, I take the term “diversity program” to mean any initiative aimed at diversifying the people who make up a law firm i.e. a diversity of races, sexualities, and genders.
As for whether such programs are “changing ways”, I don’t have an affirmative, negative, succinct or direct answer to this question. And that is because I don’t know what the metrics are. I fear that firms mightn’t know them either. And if they do, they have kept them a secret and succeeded in confusing me.
One of the issues here may be that firms (and other business organisations) are too skittish in an age of political correctness and social media lynch mobs to properly define what kind of change they are aiming for.
For example, do firms truly want a diversity of perspectives? If so, why do they simultaneously try to rigidly articulate their “values” and “firm culture”? Why are their marketing materials meticulously curated to guide the outsider’s mind to a single “idea” or “emotion” that they hope will encapsulate their commercial identity?
Moreover, do they truly want a diversity of abilities? If so, why do they refuse to look beyond grade point average baselines when any rational person can see that a socioeconomically disadvantaged candidate who has worked throughout their degree might have life experience at the expense of good grades?
Are diversity programs an attempt at altruism or advancing the community or are they an attempt at profiting from undiscovered cultures, networks and far away lands?
Further, how do firms measure diversity? What exactly are the ingredients? Do we risk reducing diversity to someone’s appearance or culture or manner of speaking? For example, is it enough to employ a few Indian people because thereby “India is represented in the diversity matrix” or do organisations realise in light of there being 1.311 billion Indian people and an Indian diaspora totalling 244 million that there may in fact be very little in common between a Bengali raised in Queens and the Gujarati who was born in Sheffield? There may in fact be more in common between the Gujarati born in Sheffield and the Anglo-Saxon Brisbanite born and raised in Brisbane – after all, both had affluent parents and attended the same elite private school.
Is it simply enough that we have more women, gay people and people of colour in all levels of the organisation? Is that diversity? Or is that an approach that brings two ideas into conflict: first, that a person’s gender or skin colour or sexuality should not define who they are; and, second, that somehow in some contexts, who they are (really) is a consideration that can be supplemented or perhaps overridden by an acknowledgement of their sexuality or what they appear to be on the outside (an acknowledgement that was given, ultimately, so that a checkbox on a “diversity program” could be ticked and marketing materials updated accordingly).
Once law firms and the broader community tackle these and many other unsolved mysteries (and contradictions), meaningful change will occur (whether or not it is innovative is irrelevant).
On a side note, I do think people can be institutionally disadvantaged. I also believe that disadvantages in this context are causally connected to one’s race –particularly if one is an indigenous person in Australia– and also to one’s gender –particularly if one is not male– and to one’s sexuality –particularly if one is not heterosexual. I don’t believe, however, that these factors are necessarily more determinative of a person’s situation of advantage than the sum total of other variables, some imposed upon them, such as the socioeconomic “class” they were born into, and others generated from within them, such as their character and their work ethic.
The idea of diversity programs doesn’t quite sit well with me. In an ideal world, we shouldn’t need quotas and programs to ensure that law firms are employing individuals from a wide variety of backgrounds. However, this would be ignorant of the reality of the world and the hidden biases that many people, particularly in the legal profession, still hold. Therefore diversity programs to me are necessary, and I cannot deny the fact that I, as an Aboriginal woman, have personally benefited from diversity programs in the legal profession. However, to me they are not in any way innovative or ‘changing ways’, but are merely an example of the legal profession meeting the minimum requirements with respect to diversity.
Law firms need to be actively pushing for change, not passively creating programs and ticking the diversity box. The leaders in the profession, the judges and partners, need to be championing diversity, leading by example, and using their influence to push for more inclusion and representation within the legal profession. Greater education is also required for the wider legal profession, so that these biases can be addressed and hopefully overcome. It should not be the minority that has to fight for recognition and inclusion, but the majority that should be opening the doors.
Whilst I of course intend to be a role model for young Aboriginal people hoping to become lawyers, it should not be left to me or any other member of a minority to lead this change. Therefore I can understand why diversity programs exist currently, but I cannot accept that they are the solution to the problem. More is needed from law firms and members of the legal profession, and when it comes to diversity, we should not settle for anything less than the best.
Of the many ways to interpret ‘diversity’, I’m going to choose gender diversity as it is the most glaring problem in the legal industry in terms of the groups struggling to achieve success in the industry. It’s an issue that isn’t viewed through the lens of innovation the same way other areas are in the legal industry.
There are two reasons I believe diversity programs are not innovative and are not changing for the better, at least not at a respectable rate.
The first is lifestyle. I have yet to see a fully implemented program that enables flexibility the way it is advertised in job positions or on the firm websites. Countless partners or seniors have families and are staying back until quite late every day – it’s viewed as perfectly normal and, more often than not, expected. Those that don’t do this simply don’t move up anywhere near the same rate. It’s not sustainable, no matter how normal it is. I completely understand late nights are necessary for trials and other urgent matters, but it is an issue that affects everyone in families and those who wish to have them. In the legal industry, more often than not, you have to trade one for another. A successful example of the best of both worlds is Sue Kench from Baker & McKenzie.
The second issue is segregation. Because women see how difficult it is with the barriers they face as they move up the ladder, they create numerous women’s legal institutions, awards and other ideas that, although well intended, only serve to widen the gap even further. You don’t hear of the ‘Men’s Lawyers Association’, but women have so many of this kind. It takes away from the important issue that women need to be seen in the same light and same context as their male counterparts if they wish to overcome the problem. I understand the necessity – some recognition and resources are better than none. But it simply does not serve to assist equality in the long term.
The true change will only come when it is passed on from the leaders. Leaders who have had significant experience in the field and have significant influence can make the change. When they are willing to extend that influence to encourage diversity in the legal industry, we can expect change to come in solid waves rather than scattered and half-hearted ‘innovative’ strategies that promote diversity, but do little to actually change our current position.
To some extent I feel that the diversity programs offer by law firms currently aim for ‘material diversity’.
Diversity for me is people who have come from different experiences and backgrounds. While it is perfectly fine to have a certain percentage of female partners, or a certain percentage of ethnic diversity, to some extent these aims are just ‘bells and whistles’.
For an industry which is very much client focussed and service focussed, touting to a client about diversity programs fail to provide any beneficial value. Therefore, the question is what do these diversity programs lead to? Granted, we recognise that a lot of the rationale behind diversity programs is to start a conversation and get people to recognise that some people are institutionally disadvantaged by their personal circumstances.
True diversity should lead to increased value for law firms because it provides their clients with more proficient legal services; however, the problem with diversity in the legal profession is that it is automatically behind the eight-ball from the graduate program.
Generally, law students are the ones who are excel in high school and come from a high-performing background. While there is some diversity in the personal circumstances of students (indigenous, ethnic, postgraduate entry etc) by and large, when law firms pick students from universities like UQ, QUT or ANU, there is already a predetermined mould. Therefore, I believe there is some value in seeking to engage law students from more remote universities who would have life experience to offer. TLF is a living example of diversity because we have a combination of students and graduates all from different areas and universities who can all offer different perspectives on how to innovate in the legal industry.
While the legal profession aims at diversity from a ‘material’ perspective (% of females; % of people from an ethnic background), other industries have taken a different route and attempted to create diversities by recruiting from different fields. To some extent, I believe having the perspective of STEM graduates and students in areas such as mining or corporate would enable better value to be created. For example, the financial consulting industry have attempted to recruit students from an engineering or mathematics backgrounds.
This is what diversity means for me: a diversity of opinions, beliefs and knowledge leading to actual value to clients.
Diversity is fundamental to ensuring that the legal profession remains able to operate holistically – a mixture of minds, perspectives and opinions is often beneficial to clients. Although this answer will not going into the value of employment or engagement on merit, it is important to acknowledge that a desire for diversity should not perturb the value of merit.
In responding to the question, it is important to ensure that the question is not distorted. The fundamental element underpinning the question relates to equal opportunity and this is an inherently important aspect of society as a whole, not just the legal profession. In this regard, the legal profession does seem to have an unfortunate reputation of being dominated by uniformity (and this term is adopted with the intention of broadly including class, race, gender, sexuality and cultural discrimination).
In my view, diversity programs are changing the legal profession but not because this is necessarily something that is “innovative” rather it is because diversity is desirable. Nonetheless, and as the question identifies, there is a fine balance that must be achieved between diversity for marketing purposes and diversity because it is inherently good.
Personally I find the need for “diversity programs” in the legal industry quite maddening. We should be inclusive because it is the right thing to do. There is a number of economic and efficiency reasons to justify why having a diverse workforce is important but beyond this, it is simply important for everyone regardless of their gender, race, sexuality or socio-economic standing to have a seat at the table.
Since becoming part of TLF, I associate the word “innovative” with something new and inspiring – perhaps this is not the correct use of the word- but I don’t believe in labelling everything ‘new’ as ‘innovative’. Do I think diversity programs are innovative because they are new to the legal industry? No – I think they are overdue.
I find I am unqualified to answer whether these diversity programs “actually” have any form of impact. I think diversity programs should be critiqued from the perspective of the people the diversity programs claim to serve. Whether the programs ‘change the legal industry’ is determined by whether people from diverse backgrounds feel they have entry to the legal market without barrier.
To answer the question; if a firm develops a diversity program purely for marketing purposes but the program has the effect of sparking conversation and promoting inclusion, then in my opinion the program is still valid and effective in ‘changing the legal industry’. As Angus Murray has said, there is a fine line to be drawn between diversity for marketing and diversity for inherently good reasons. I believe this line is often impossible to distinguish and I believe the programs are developed for both reasons.
Diversity programs are innovation… sort of
In short, law firm diversity programs are innovative if we define “innovation” broadly enough. Whether diversity programs actually “change ways” is more complicated.
To borrow Erika Ly’s (TLF NSW) winning definition of legal innovation from the last TLF Brainstorm: “legal innovation and innovation more broadly, is simply change for something new.”
Based on this definition diversity programs are innovation within the legal industry, but certainly not beyond it. Law firms are slow to adapt and what constitutes innovation to the legal industry does not amount to innovation outside of it.
Changing ways… some of them
In the context of law firms, there are two “ways” at play:
1.) the “way” of hiring practices; and
2.) the “way” of retaining structural control.
Hiring practices can be improved
Diversity programs can change hiring practices if they:
(a) are quantitatively and qualitatively effective;
(b) apply equally to all (as measured by traditional metrics like race and gender and sophisticated metrics like personality, style of thinking and upbringing); and
(c) are non-exhaustive (meaning they don’t prevent more being done).
Diversity programs currently tend to measure effectiveness either qualitatively (ensuring fair process) or quantitatively (prescribing quotas). Neither approach is sufficient in isolation.
To be effective a blended approach should be used where the diversity program:
(a) focuses on the qualitative goal of removing cultural stigmas and systemic biases to enable equality of opportunity; and
(b) analyses quantitative measures of change in diversity (and any corresponding economic benefits) through traditional and sophisticated metrics.
Structural control is preserved
The chief concern is that law firms will use diversity programs as a way to stop striving towards deeper levels of inclusiveness (which is why diversity programs need to be drafted as non-exhaustive).
Diversity programs fall neatly within a historical pattern of drip-feeding minorities rights that should never have been taken away from them in order to retain structural control.
Realising the inherent limitations of diversity programs leaves us with two (2) options:
1.) propose the best possible model within this paradigm; or
2.) work to displace the current balance of power through innovative practice models.
I fundamentally believe that “and” is greater than “or”, and that as such we should be using both methods.
Recognise what is but strive for what ought to be
Whether diversity programs are innovative is a question of the scope given to the word “innovation”. Diversity programs are not equipped to challenge structural control, though if drafted to remove cognitive biases and measure the results, they can improve hiring practices.
Challenging an existing structural control requires disruptive innovation. In the meantime, we must operate effectively with the tools we have and demonstrate to the powers that be how economically beneficial a diverse workplace can be.
It is not by denying our own self-interests in favour of serving the common good that we will alleviate disadvantage. Rather, it will occur when we realise they are one in the same.
Some people have told me my sexuality would hold back my career. Others have told me they know ‘exactly’ how I will get promoted. On top of comments like this, I am reminded every day that we do not have marriage equality. I understand everyone has their own challenges but no one should ever have to question their value as a human being. Sexuality, gender, colour of skin and heritage will always form part of who you are but they should never define who you are.
Law firm diversity programs are not innovative – they should just be the decency and respect we should afford every single person. These programs should not focus on meeting percentages. They should be tools to provide support, mentoring and education.
The real innovation is the people who persist in this industry without meeting the status quo – the people whose value is questioned considerably more than the straight white male. We have to keep fighting to enable and empower people from diverse backgrounds to enter the legal industry because it is about damn time it reflected the diversity in society. If you ever feel your value as a human being has been questioned, please never hesitate to reach out to me or a relevant community service. I’m with you.
Diversity programs are a difficult topic to discuss because it’s often hard to be sure whether to talk about them in theory or in practice. I also worry because as a white woman, I’m in the group most likely to benefit from any type of affirmative action policy. This is something I’m concerned about as it means that LGBT people and people of colour aren’t able to benefit from a program which should be seeking to help them progress.
Responding to the question, however, in my opinion, diversity programs are not necessarily either ‘innovative’ or merely ‘bells and whistles.’ Regarding the first, diversity programs have been around in some form or another for some time and regarding the second, I think that ‘bells and whistles’ demeans the good work that is done when a diverse point of view is brought to the table and able to improve the working, social or cultural outlook of a workplace.
But on a personal level, diversity programs have been more of a hindrance than a help, due to their tendency to cause or exacerbate imposter syndrome. When I first started my law degree, I was cognisant of the fact that my OP was much lower than that of my classmates and that I had most likely got into law because I had been educated at a public school. In second year, when I got a research assistant job on a project connected with feminist jurisprudence, I worried that I had only got it because I was female.
The problem with diversity programs has always been the underlying effect on my sense of my intrinsic worth and how it has perpetuated this idea that I have only received the things I have received through less than legitimate means. It made me paranoid that other people thought the same of me. It made me value my contributions less because I was concerned that I was less qualified than other people.
So, perhaps true innovation in this space would be to have a diversity program that is able to operate without that level of consciousness of otherness. I don’t believe in pretending that everyone is the same but too much awareness of someone’s place as a ‘diverse’ voice can be isolating and harm their sense of legitimacy in the workplace, something that law firms should make a real effort to avoid.
Our profession has a reputation, at least in Brisbane, for being for the most part controlled and dominated by white privately educated conservative men – particularly when one considers the private bar and those briefing them. The culture seems to exclude – sometimes unapologetically – women, people of a different sexual orientation or of a different race, or anyone really who hasn’t had a fortunate upbringing during which their parents introduced them to the ‘right people’ – or are one of those ‘right people’. This creates a problem for the profession as it can create a bubble in which intolerance is accepted, however in my view the more powerful barrier to locking people out of the profession is the tacit understanding among the legal fraternity that only a certain type of person be admitted.
This culture in my view highlights the need for some sort of innovation in this regard, but I confess to not having a view on whether or not firm diversity programs are doing enough in this regard or if they are indeed just ‘bells and whistles’. I don’t really think they’re innovative. They’re certainly necessary I think, in some form, and can be important tools in evening out the playing field for those who wouldn’t otherwise get a run – and it’s not just the legal profession who have these cultural problems; medicine for example is just as affected – but firms and the profession more broadly can’t stop at these programs, the lack of diversity is so deeply rooted in our culture that a far more significant shift across the profession is required.
I echo something Clarissa Rayward and I spoke about the other day regarding the way law firms approach recruitment; we agreed that law firms should approach recruitment by valuing life experience as highly as an applicant’s GPA – if not more so – as that truly gives diversity in a workplace. The majority of us work in areas of law that affect real, everyday people, servicing clients who require a good ‘bedside manner’ to understand what life is like outside universities and top-tier law firms. These skills are not only valuable for ticking the ‘diversity box’ but they will actually make people better lawyers, and as a result more successful firms. If the profession realises diversity delivers better legal services (and I’m convinced it does), sterile-sounding strategies like diversity programs won’t have to be plugged; they will just be essential.
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