Achieving diversity: issues and solutions for law firms, the profession

While we would like to believe we’re moving toward a bias-free society relative to race and ethnicity, studies refute that it's happening as quickly as we'd like. According to the U.S. Census, minorities make up less than 10 percent of all lawyers. That puts the legal profession at the bottom of the list for all professions in terms of diversity.

YourABA recently spoke with Arin N. Reeves, author of “Colored by Race: Bias in the Evaluation of Candidates of Color by Law Firm Hiring Committees.”

Reeves’ article is part of the first edition of The Diversity Collection, a sampling of diversity-related articles published within the ABA that explores the professional representation, pipeline and social justice aspects of racial and ethnic diversity in the legal profession. The Diversity Collection is published by the ABA Center on Racial and Ethnic Diversity. For a complimentary copy, visit the Center's Web site, while supllies last.

The Athens Group, where you are president, recently completed a study--by the same title as the article you recently wrote—on the evaluation of candidates of color. What were some of its findings?

We interviewed partners who are involved or have been involved in the hiring process, and what we found was that, minority lawyers often have to be more qualified in order to be considered, and when they are qualified, they're treated very differently.

There are a lot of suppositions that are attached to minority candidates. They’re either labeled as a failure risk or a flight risk. When a minority candidate comes in, some of the conversations that many hiring partners have with respect to the candidate are, that, "Well, we don’'t know if they’ll make it," and "Should we really take a chance on this candidate?" Those types of conversations were not being held with similarly qualified white candidates. The supposition about a white candidate is that he or she will be successful here.

Often when hiring partners are looking at superstar minority candidates, from the top law schools and with great resumes, we see the flipside conversation, where, "Wow. This person is clearly qualified and will be successful. We really don’t know whether they'll stay. Do we really want to take a chance when we don't know whether this candidate will stay?"

So we found out that these stereotypes and biases are in play even before the candidate is hired. And that was a main point behind the study—to get that point across.

When minorities are treated differently in the hiring process, it means that when these candidates come into the law firm, they’re also not going to have the same kinds of experiences as their counterparts.

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How can a law firm begin to address some of these issues?

A couple of different ways: first and foremost, acknowledge that these sorts of conversations are going on. None of these issues are ones that are going to be erased overnight. It took us a very long time to get to the culture that exists today. And it’ll probably take a long time to create something new.

At the same time, there's a very strong expectation of political correctness that doesn’t allow us to be honest about what we're seeing. So I think the first thing that law firms can undertake is to have open conversations and admit that, yes, "We do treat these candidates differently. We don't have as many minority candidates as we do white candidates. So let’s talk about how exactly we're biasing the candidates and look at the ways that maybe we haven't done it well in the past.” We can’t change the situation if we’re not being honest about it.

The second thing is to acknowledge that, when you focus on diversity, you have to focus on differences. Law firms have to be able to look at differences in different ways. In order to have men and women in the workplace, law firms need to talk about gender differences. In order to have racial and ethnic minorities in the workplace, firms must be able to talk about racial and ethnic differences. They have to say, "If we’re going to hire someone who is, for example, either African-American or Hispanic, who is well qualified, he or she is going to have a lot of opportunities ahead of them. What do we have in place at our law firm to make sure that this candidate succeeds?”

That’s a very different conversation than treating a candidate like an attrition risk. Law firms have to acknowledge that they may be more vulnerable to greater attrition rates because they don't have a lot of minorities in their firm. There are a lot of reasons why minorities have higher attrition rate, so firms should talk about what they have in place to ensure that they are trying to address that rather than treating minorities like they’re a foregone attrition risk.

So the first step is acknowledging the problem, the second step is talking about it in a productive, rather than deconstructive manner. The third step is that, in order to address the issue, a lot of law firms have put into place specific training strategies to address these issues. And it’s a misconception, I believe, that sensitivity training leads to diversity. Sensitivity training does not work. Specific skills-based training does work.

Sometimes more focused training is needed—a step back to consider whether there’s a specific kind of training that firms can implement for the hiring partners, for example, that leads to productive conversations and real diversity.

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Absolutely. We focused this study narrowly on what happens in the hiring process. But you’re absolutely right that there’s a very tightly knit relationship on what goes on in hiring and then retention and advancement. Although the hiring committee often has very specific mandates with respect to hiring, its ability to hire is closely related to how well the firm is doing in regard to diversity overall. It’s very difficult for law firms that have high attrition rates with respect to minorities to get more minorities in the door.

Many of the problems facing minority lawyers stem from a lingering bias around race issues that we haven't erased yet, some of it is bias around gender issues that still affect women of color. But I think a larger reason is that there are a lot of practices in firms that are now coming to light as not working that well for anyone, such as mentoring strategies, work allocation strategies, and strategies on how to develop young lawyers. But these deficiencies are especially harmful to minorities.

Since these practices often aid a minority lawyer’s success, the failure of these programs in many law firms have hit these lawyers particularly hard--especially since minorities tend to be left out of a lot of informal networking opportunities already.

Lawyers of color tend not to be as included in the cultural fabric of a law firm; minorities tend not to have as many illustrations as people who look like them. There’s not a lot of representation because there aren’t that many people like them in law firms.

With all of this said, sometimes I think people think of race bias as a bias against somebody. I think the legal profession and law firms specifically should understand that race biases are not necessarily against somebody, but are biases for someone.

Take for example, an older white partner. He may not be biased against racial or ethnic minorities. He might have a preference for someone—he might feel more comfortable with a younger white man who reminds him of how he was as a younger man. He might be more comfortable with older white men who are like him. So a preference for someone or a comfort with a particular kind of person may not be bias against someone else, but it may end up having the same impact.

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Clients are in fact really stepping up their demands for greater diversity in the legal field. And while we didn’t cover that directly in the study, what we did find was that client demand was a key reason a lot of law firms have intensified their focus on diversity.

When clients push for it, what happens is that you have more individuals within law firms who say, "Yes, we need more diversity." But they’re saying that because their clients are demanding that, and they haven’t fully thought about what that means. There’s a gap that, unfortunately, exists right now between good intentions and the hard work of really getting your conversations and structure in place to really be more inclusive of diversity.

Law firms don’t always know how to enhance diversity. So sometimes the first efforts out of the gate are a little bit stumbling and a bit more incoherent, but I think it’s still very good because regardless of how people start, the fact that they're trying to move in that direction is encouraging.

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Your article is part of a bigger set of articles on diversity, put together by the ABA's Center for Racial and Ethnic Diversity.  Can you tell readers a bit about the project and how it can help law firms understand and implement strategies to further diversify their practices and become more sensitive to the issue of race bias?

One of the goals of The Diversity Collection was to start pulling together what was already out there—isolated threads of conversations about diversity. There’s a lot of enthusiastic people who are working on diversity, but they’re not necessarily leveraging what other people have done or are doing.

So I think one of the points of the collection is to really bring together what is being done in the ABA as a whole—and what is being done is not necessarily limited to what is being done in law firms. It includes diversity in social justice issues. It includes diversity in the pipeline, the public sector, corporate legal departments and all these other areas as well.

As a profession, we’ve got to come together on diversity. For example, those people who are trying to get more minorities into law school should be very close allies with law firms who are trying to recruit more diverse lawyers.

Similarly, the trends in law firm hiring is to hire laterally from the public sector, from the government sector, from corporate legal departments. Legal academic departments are hiring from law firms; private sector lawyers end up transitioning to academia – so we have to start seeing ourselves as much more of a connected profession where each of our efforts really benefits the efforts of another sector and, conversely, a lack of effort brings down the ability of another sector to really succeed.

I do think the next level of success for the ABA and for law firms individually is to start leveraging their efforts with a greater sense of corroboration. This will increase forward momentum for the profession as a whole.

Are there additional considerations—tips, if you will—that we haven’t touched upon?

I think it’s important for people who are working on diversity issues to realize that results don’t happen overnight and it's normal to be tired and disappointed. We’ve had a long history of getting here; we did not get here overnight, and we’re not going to get out of here overnight.

We have to celebrate small successes, even while we keep our eye on how much farther we have to go.

And I think it is important for us to remember that the major breakthrough in the presidential election came from an African-American lawyer. So what we do in the legal profession not only affects us but is a major pipeline into politics. That should give the legal profession all that more inspiration to strive for diversity, which can then affect the whole country.

Diversity within the profession is a pipeline into the Supreme Court, for all courts, for judges who make decisions that affect us all. It's also a pipeline into the U.S. Senate. And the first really viable female candidate for president, Hillary Clinton, was also a lawyer. So we need to keep the much bigger picture in mind.

So, it’s OK to get tired, it’s OK to get frustrated. It’s understandable that when you read studies such as mine that it seems "Gosh, we’re not doing enough." My goal personally is not to say we’re not doing very well. It’s to say that, in our quest to do better, we’ve got to look honestly at the realities that are facing us so that we can understand how we can do better and then actually do better.

The message is to keep moving. Don’t just stop because you’re tired. Keep reading, keep trying new things. I continue to research these issues so that we can keep moving in an informed way.

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