Creating Diversity and Inclusion in the Legal Sector

Introduction  

Diversity and Inclusion, although similar concepts are inherently different from one another. Diversity relates to respecting and valuing all persons regardless of characteristics such as their sex, race and ethnicity, religion, and disability[1]. Inclusion in contrast is the practice of accepting and welcoming all groups of people. The government’s diversity and inclusion strategy[2] aimed at equal treatment and opportunity encompasses this. At the core of every Black Lives Matter or Me Too conversation that has been sparked over the past decade in the UK has been the sensitive topic of diversity and inclusion, or a lack thereof.

With London’s population being 51% female[3] and 40% Black Asian and Minority Ethnic (BAME)[4], London’s mayor Sadiq Khan refers to the city’s diversity as rich and one of its most valuable assets[5]. However, 42-year-old youth worker Dominic Hutchins[6] who was made redundant due to Tory cuts and must now prove that he has Cerebral Palsy to claim disability benefits begs to differ. It stands to reason that despite being relatively diverse, society may be failing to practice inclusion.

In this article, with reference to relevant research reports and academic literature, the author will give an assessment on the struggles to create diversity and inclusion in the legal profession, specifically law firms and what needs to be done to bring about authentic diversity and inclusion among its talent.

Diversity and inclusion

The general consensus is that law careers are the domain of white, middle-to-upper class males[7]. Unfortunately, diversity data published by the Solicitors Regulation Authority (SRA) every two years proves that this is not just a stereotype.

Statistics prove that women make up 49% of lawyers in law firms and ¾ of the workforce for ‘other legal staff’[8]. By logic, more women working in the law firms begets more women occupying more senior level positions in law firms. Yet, this is far from reality. A good case in point is DLA Piper. DLA Piper is a global law firm located in more than 40 countries[9]. 54% of this firm’s lawyers are female and 46% are male. At this same firm, 21% of its partners are female and 79% male[10]. This is the position of many other law firms across the country. It raises the question as to whether women are being systemically blocked from senior level and managerial roles as compared to their male counterparts.

Being disabled is defined under section 6 of the Equality Act 2010 as having a physical or mental impairment[11]. In the UK, 3% of all lawyers[12] fall under this category. This figure suggests that law firms may not be as committed to disability diversity as they claim to be. During the recruitment stage, there tend to be discriminatory biases due to a lack of awareness[13] and fear as to how a neuro-diverse applicant when hired may be limited in executing their role. In addition, law firms are aware that in hiring a disabled applicant, they may need to make necessary accommodations such as knocking down an existing reception desk and rebuilding it to be a better height for a person in a wheelchair. The smaller law firms that lack the funds[14] may not be keen to do this. 

Historically, many employers were hesitant to offer positions to members of the BAME community, specifically Black people on account of years of racial stigma. We are now living in a new dispensation and things seem to have changed so much so that when referring to diversity and inclusion in any setting, one of the first things that rolls off the tongue is race and ethnicity. The SRA diversity data shows that 21% of all lawyers are BAME[15]. Albeit a step in the right direction, there is still room for more to be done to increase the representation of BAME lawyers in the UK. As can be seen, there are glass ceilings that till this day hold women, the disabled and members of the BAME community with legal careers back.

Struggles to create diversity and inclusion

One of the most common ways that law firms try to demonstrate diversity and inclusion is by drafting a diversity and inclusion statement. The average law firm has a diversity and inclusion statement that reads something along the lines of ‘Strength in diversity – Making minority groups valuable and a strength of the team, and not just a ‘pity case’.’ The issue with these statements is that as soon as an underrepresented group is picked to focus on, there is an implication that the law firm is elevating it above the others. Possibly, to some extent, excluding the others. The alternative is to draft a vaguer diversity and inclusion statement that encapsulates everyone, but then this rather feels generic. Be that as it may, whether specific or vague, diversity and inclusion statements have been ineffectual in achieving what they were drafted for. Ideally, the general prevailing business wisdom and what’s better is for law firms to show and not to tell.

With the main push for diversity in most law firms at the moment being gender, firms such as Pinsent Masons are setting targets for female trainee intakes[16]. While this is a great initiative, law firms are gradually reaching a sophisticated level of diversity beyond mere increases in the easiest numbers around its female intake.

Similarly, Magic Circle Law firms have implemented blind CV test schemes to help broaden diversity[17]. However, these blind applications and threshold inviting applicants to interview have caveats. The caveats are that at a point in the application process, the hiring firm eventually needs to know what university the applicant attended. This defeats the whole purpose of the scheme because, by the end of it, it is the applicant who studied at the University of Oxford or the University of Cambridge (Oxbridge) who will be successful in the recruitment process. Meritocracy above diversity. There is no denying that there have been efforts by law firms to promote diversity and inclusion. However, the underlying factor is the unfeasibility and improper implementation of these systems.

Creating a more diverse and inclusive culture

To create a more diverse and inclusive culture in law firms, it is necessary to establish systems that can be implemented practically and properly. This can be done by:

1. Raising awareness and elevating the conscience to use the great feminism term.

In a law firm, there are finders, minders, and grinders. Finders are the partners. Their primary role is to go out and find work. Minders are the principal and senior associates. Their job is to mind and look internally to running their teams and helping their junior associates and trainees. Grinders are the junior level solicitors, trainees, and paralegals. It is quite shocking to say the least that despite the Feminist Movements, Women’s Emancipation Rights and Women’s Rights Movement, women are still limited to being grinders and minders in law firms with only a few making it to become finders.

In effect, finders focus on external business development rather than PDR performance reviews and hiring processes. Finders are typically almost pressed for time, but yet to some extent, they still have to do some management – whether internally or externally phasing. As a result, many assume that this role is not quite suitable for women. There is no truth to this assumption because at firms like Fragomen, women make up 50% of its equity partnership[18] and they do it flawlessly.

A way to create a more diverse and inclusive culture for women is therefore by raising awareness and elevating the conscience to use the great feminism term, i.e., the third-wave feminism. Third-wave feminism is a movement that focuses on questioning and redefining ideas about womanhood and femininity[19]. Particularly in the workplace, third-wave feminism seeks to fight against the harassment of women while fighting for women to assume leadership positions[20]. Third-wave feminism also analyses the social construct that is masculinity. It does this to counter the notion that men are the neutral yardstick to measure women’s achievements against[21].

The plight of third-wave feminism however is that although legislation such as the Equality Act 2010 advocates against the discrimination of women in the workplace[22], there is a problem in its cultural implementation. This is owing primarily to the lack of awareness of the feminist movement. For instance, when writing this case study paper, there were limited resources available on LexisNexis, Westlaw, and Practical Law on the third-wave feminism to form part of my study resources. This indicates the gap in knowledge on third-wave feminism holistically.

Change cannot be brought forth if the actors of change lack knowledge on the change that is actually needed. It is hereby imperative that awareness is raised on this topic of feminism. To effect change in law firms, employers and employees need to gain an understanding of what third-wave feminism is and what it seeks to achieve with regards to women occupying more senior roles. Awareness of third-wave feminism will reveal to many including Harvard Business Review[23] that the feminist movement is seeking more than flexible working, maternity care and adoption leave for women.

Once desired awareness is raised and the conscience is elevated on this principle of feminism, the culture of law firms will inherently become inclusive to women taking up the senior roles that they deserve.

2. Creating level-playing fields.

The concepts of diversity and inclusion go hand in hand. They should not co-exist without the other. So, creating level-playing fields in law firms is a pertinent way to ensure that underrepresented groups (i.e., diversity) are treated fairly and provided with equal opportunities (i.e., inclusion).

Firstly, law firms can create a level-playing field through diversity and inclusion training[24] run by employers. Law firms need to put in place annual mandatory training on diversity and inclusion to be completed by all employees. In this training, employees can be taught third-wave feminism and its importance in law firms as well.

It is more difficult for a BAME applicant who did not attend Oxbridge to find employment at a Magic Circle Law firm. But what these Magic Circle Law firms fail to take into account when writing off such an applicant is that they were either from a lower socio-economic background, did not have family in the university system, did not know about the classifications in universities or were systematically blocked from opportunities due to racism. Thus, the focus should not be on the fact that a 2:1 from Oxbridge is better than a 2:1 from a polytechnic, it should be on the fact that the applicant was prevented from getting into Oxbridge in the first place because of various forms of discrimination. In this regard, another way of creating a level-playing field is through fair recruitment processes. Law firms can create a level-playing field by opening the recruitment process to a diverse pool of candidates regardless of gender, physical ability, race and ethnicity and social mobility. Applicants will therefore be assessed based on their abilities and value to the job role.

The blind CV test is a recruitment process that has been adopted by law firms[25], but it has proven itself to be biased. A fairer recruitment process is PWC’s game-based assessments which consist of eleven different games covering the different skills PwC wants to assess[26]. Law firms could mirror this by creating an anonymous test-based recruitment process where applicants do not need to submit a CV, covering letter or any other information relating to them. Instead in this recruitment process, there will be different tests covering the relevant skills an employer wants to assess. The applicant will need to pass test 1 to move on to test 2 and so on. As the applicant progresses, the more intensive the test gets until there is a ‘last man standing’ at which point they will be recruited and then their identity disclosed to the employer. Many firms have adopted a similar approach. The ultimate difference is that in this recruitment process, no personal information about the applicant will be disclosed until they have successfully passed the test and been recruited into the position.

3. Implementing positive discrimination.

When female, disabled and / or BAME lawyers and legal staff complain that they are being blocked from opportunities, the solution is to stop blocking them from opportunities. Nonetheless, this solution is easier said than done. Hence, positive discrimination is the next best alternative.

Positive discrimination is the act of treating a group of people more favourably than another because they have a protected characteristic[27]. To do this, there will ultimately be some losers, i.e., the majority. Although it is important for law firms to award positions to the most qualified candidate, there is also to a duty make reasonable adjustments[28] to enforce diversity and inclusion.

Americans have been more forthright in implementing positive discrimination to reduce inequality in education and employment[29]. They commonly refer to it as affirmative action. The British on the other hand have not. This could be because it is generally prohibited under the Equality Act 2010 or probably because they are not as keen to change the status quo.

“If we eliminate or seriously curb unconscious bias at law firms, then we will do better at having the very best teams, and that means companies that hire them will get the best results.” These are the words of Ms Minarik in the Financial Times[30]. To eliminate unpremeditated biases through positive discrimination in the UK, it should be mandatory for law firms that substantially lack a diverse and inclusive workforce to include in their policies and procedures a diversity quota. In setting a fair quota on matters such as how many females partners to have and how many disabled applicants to hire over a length of time, these targets when met will help to bridge the gap in law firms and increase representation.

4. Appointing a subcommittee.

This article as a case study paper has many acknowledged, law firms have made strides in trying to promote diversity and inclusion. The issue is that they have failed at their implementation. In light of this, a way to raise awareness and elevate the conscience to use the great feminism term, create level-playing fields and implement positive discrimination in the law firm will be through the appointment of subcommittees.

A diverse subcommittee with members of the firm’s most underrepresented groups should be appointed to be a soundboard. The specific roles of the subcommittee will be to be an internal check and balance on these policies. It will monitor the implementation of the policies on junior lawyers up to partners, ethnic minority up to white, disabled up to physically abled, to ensure that it is working.

With reference to the suggestions that this case study has raised concerning how to create a diverse and inclusive culture, a law firm’s subcommittee will seek to ensure that adequate training is given to all employees on third-wave feminism and its importance in law firms, that recruitment processes are adhered to and strictly enforced, and that diversity quotas are met.

Conclusion 

Many people are systematically blocked from opportunities because of their race, gender, or disability. The legal sector, specifically law firms’ response to this has been to hop on the ‘promoting diversity and inclusion’ bandwagon but it seems to be merely for a performative sake. More needs to be done and less needs to be said. Until then, the current diversity and inclusion culture will not change.

Law firms can do more by raising awareness and elevating the conscience of the great feminism term. Once the stereotype that a partner should possess the traditional masculine role of being confident, assertive, and combative is discarded, more women will be given the role of finders in law firms. Law firms can also do more by creating level-playing fields for the underrepresented groups, even if this means implementing the practice of positive discrimination. Most importantly, policies are only effective if they are monitored and implemented properly. Therefore, a subcommittee made up of diverse members must be appointed to hold the law firm accountable and ensure that what is being preached is being practised.

Bibliography

Articles

MAYOR OF LONDON, 2017. The Mayor’s vision for a diverse and inclusive city. London: Greater London Authority, p.5.

E-Books

2013. ASSESSMENT OF THE GLA’S IMPACT ON GENDER EQUALITY UPDATE 2013. [ebook] p.2. Available at: <https://www.london.gov.uk/sites/default/files/gender_equality_assessment_2013_final.pdf>

2009. Not Our Mother 's Law School?: A Third-Wave Feminist Study of Women 's Experiences in Law School. [ebook] p.127. Available at: <https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2272&context=lf>

Statutes

Equality Act 2010. s6.

Websites

Lexisnexis.co.uk. 2021. What is diversity and inclusion (D&I)—law firms | Legal Guidance | LexisNexis. [online] Available at: <https://www.lexisnexis.co.uk/legal/guidance/what-is-diversity-inclusion-d-i-law-firms> [Accessed 21 October 2021].

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Hall, K., 2021. Clifford Chance broadens diversity with ‘CV blind’ scheme. [online] Law Gazette. Available at: <https://www.lawgazette.co.uk/practice/clifford-chance-broadens-diversity-with-cv-blind-scheme/5039349.article> [Accessed 21 October 2021].

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Footnotes

[1] Lexisnexis.co.uk. 2021. What is diversity and inclusion (D&I)—law firms | Legal Guidance | LexisNexis. [online] Available at: <https://www.lexisnexis.co.uk/legal/guidance/what-is-diversity-inclusion-d-i-law-firms> [Accessed 21 October 2021].

[2] GOV.UK. 2021. Diversity and inclusion strategy 2019 to 2023. [online] Available at: <https://www.gov.uk/government/publications/charity-commission-diversity-and-inclusion-strategy-2019-to-2023/diversity-and-inclusion-strategy-2019-to-2023>  [Accessed 14 October 2021].

[3] 2013. ASSESSMENT OF THE GLA’S IMPACT ON GENDER EQUALITY UPDATE 2013. [ebook] p.2. Available at: <https://www.london.gov.uk/sites/default/files/gender_equality_assessment_2013_final.pdf> [Accessed 14 October 2021].

[4] UK, D., 2021. Diversity in the UK - Diversity UK. [online] Diversity UK. Available at: <https://diversityuk.org/diversity-in-the-uk/> [Accessed 14 October 2021].

[5] MAYOR OF LONDON, 2017. The Mayor’s vision for a diverse and inclusive city. London: Greater London Authority, p.5.

[6] Blewett, S., 2021. Disability campaigner confronts Jacob Rees-Mogg over Tory policies. [online] Standard.co.uk. Available at: <https://www.standard.co.uk/news/uk/jacob-rees-mogg-dominic-hutchins-cerebral-palsy-tory-conference-b958732.html> [Accessed 14 October 2021].

[7] Prospects.ac.uk. 2021. Diversity in the legal profession | Prospects.ac.uk. [online] Available at: <https://www.prospects.ac.uk/jobs-and-work-experience/job-sectors/law-sector/diversity-in-the-legal-profession> [Accessed 14 October 2021].

[8] Ibid 6

[9] DLA Piper. 2021. About Us | DLA Piper Global Law Firm. [online] Available at: <https://www.dlapiper.com/en/uk/aboutus/> [Accessed 21 October 2021].

[10] Ibid 7

[11] Equality Act 2010. 6.

[12] Ibid 9

[13] Ibid 11

[14] Chambers Student. 2021. Disability and the law - Chambers Student Guide. [online] Available at: <https://www.chambersstudent.co.uk/where-to-start/newsletter/disability-and-the-law> [Accessed 21 October 2021].

[15] Ibid 12

[16] Pinsentmasons.com. 2021. [online] Available at: <https://www.pinsentmasons.com/about-us/announcements/pinsent-masons-named-top-50-employer-for-women-2020-by-the-times> [Accessed 21 October 2021].

[17] Hall, K., 2021. Clifford Chance broadens diversity with ‘CV blind’ scheme. [online] Law Gazette. Available at: <https://www.lawgazette.co.uk/practice/clifford-chance-broadens-diversity-with-cv-blind-scheme/5039349.article> [Accessed 21 October 2021].

[18] 2021. [online] Available at: <https://www.fragomen.com/about/news/fragomen-awarded-1-ranking-women-equity-partners-fifth-consecutive-year> [Accessed 21 October 2021].

[19] Encyclopedia Britannica. 2021. feminism - The third wave of feminism. [online] Available at: <https://www.britannica.com/topic/feminism/The-third-wave-of-feminism> [Accessed 21 October 2021].

[20] Vox. 2021. The waves of feminism, and why people keep fighting over them, explained. [online] Available at: <https://www.vox.com/2018/3/20/16955588/feminism-waves-explained-first-second-third-fourth> [Accessed 21 October 2021].

[21] 2009. Not Our Mother 's Law School?: A Third-Wave Feminist Study of Women 's Experiences in Law School. [ebook] p.127. Available at: <https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2272&context=lf> [Accessed 21 October 2021].

[22] Citizensadvice.org.uk. 2021. Justifying discrimination. [online] Available at: <https://www.citizensadvice.org.uk/law-and-courts/discrimination/what-are-the-different-types-of-discrimination/justifying-discrimination/> [Accessed 21 October 2021].

[23] Harvard Business Review. 2021. Advancing Gender Equity as You Lead out of the Pandemic. [online] Available at: <https://hbr.org/2021/10/advancing-gender-equity-as-you-lead-out-of-the-pandemic> [Accessed 21 October 2021].

[24] Cole, B., 2021. 6 Ways To Level The Playing Field. [online] Forbes. Available at: <https://www.forbes.com/sites/biancamillercole/2020/10/30/6-ways-to-level-the-playing-field/?sh=52d29c4fb9f4> [Accessed 21 October 2021].

[25] Ibid 15

[26] What Is Career Unlocked, P., 2021. What Is Career Unlocked, PwC's Game-Based Assessment?. [online] Wikijob.co.uk. Available at: <https://www.wikijob.co.uk/content/aptitude-tests/test-types/career-unlocked-pwc> [Accessed 21 October 2021].

[27] Uk.practicallaw.thomsonreuters.com. 2021. [online] Available at: <https://uk.practicallaw.thomsonreuters.com/5-200-3419?transitionType=Default&contextData=(sc.Default)&firstPage=true> [Accessed 21 October 2021].

[28] Ibid 24

[29] BBC Bitesize. 2021. Affirmative Action - USA: Social and economic issues - Higher Modern Studies Revision - BBC Bitesize. [online] Available at: <https://www.bbc.co.uk/bitesize/guides/zpbsjty/revision/5> [Accessed 21 October 2021].

[30] Ft.com. 2021. In-house lawyers take control in push for firm diversity. [online] Available at: <https://www.ft.com/content/54ca9b26-75af-11e9-b0ec-7dff87b9a4a2> [Accessed 21 October 2021].