The last year has seen increased focus on better ways to push diversity accountability. ABA Resolution 113 urges legal service providers “to expand and create opportunities at all levels of responsibility for diverse attorneys and urges clients to assist in the facilitation of opportunities for diverse attorneys, and to direct a greater percentage of the legal services they purchase, both currently and in the future, to diverse attorneys.” In addition, the ABA 360 Diversity and Inclusion Commission released several tools to help increase diversity, including a Model Survey that many corporations have supported. The Model Survey allows corporations to evaluate the diversity metrics of law firms and the ABA to collect aggregate data and uniformly measure industry progress.
Consider, also, companies that have demanded higher levels of diversity from their counsel, such as (i) HP, which has announced it can withhold 10 percent of fees from law firms that do not meet diversity and inclusion goals; (ii) Facebook, which announced on April 2 that it will require 33 percent diversity of women and minorities working on its matters by outside counsel and will “actively identify and create clear and measurable leadership opportunities for women and minorities”; (iii) MetLife will require its outside counsel to provide a formal talent development plan on how they will promote and retain diverse talent by June 18 and (iv) other general counsel who have encouraged that firms be fired for failure to improve their diversity numbers and for this firing to be publicly shared.
Corporations and law firms have partnered to advance diversity and inclusion in the legal profession for a while now. At times, the relationship has been framed as a challenge from clients to those who do their work, and at other times a partnership with common goals and challenges. In 1998, BellSouth Executive Vice President and General Counsel Charles Morgan initiated "Diversity in the Workplace: A Statement of Principles," to which more than 500 corporations committed. In 2004, Rick Palmore, then CLO of Sara Lee, issued a Call to Action that again was joined by hundreds of corporations as a result of the slow progress on diversity in the legal profession. Microsoft has had a long-standing diversity and inclusion bonus program that rewards law firms for meeting its diversity and inclusion goals, and it recently updated the program to reward firms with at least one diverse relationship partner and more diverse lead attorneys on its matters.
Given that law firms and corporations have made many efforts over the years to advance diversity and inclusion, how should law firms respond to this renewed push for results? If these client-driven measures are to yield meaningful progress, we must tackle embedding inclusion and improving diversity as an organizational issue in a more cohesive and strategic way than many organizations have in the past. This series will focus on various aspects of organizational strategies necessary for us to move the needle forward meaningfully in diversity and inclusion.
Progress is not the responsibility of women, minority and LGBT attorneys alone
For too long diversity strategies have focused on telling attorneys from underrepresented groups what to do to succeed in the legal profession. The advice and programs focus on a premise, stated or implied, that attorneys from these underrepresented groups would be successful if they only knew the rules, played by the rules, or conformed to the culture. Frankly, for many attorneys of color, cultural differences and other barriers have played a role in their career trajectory and whether they achieved “success” in majority law firms despite their ability and willingness to conform and follow the rules. Conformity has proven to clearly not be enough.
It is important to provide transparency on success strategies, especially when an organization shares information informally and is relationship-driven. Transparency on success strategies, however, is merely a beginning step. We must also look at the firm culture, processes and systems and assess structural barriers. Our organizations were not built by a diverse group for a diverse group. And often we find that our systems in organizations are well-meaning but fail to evaluate where they impede diversity or have barriers built in for some (an earlier draft described these systems as well thought-out, but my editor pointed out that a process is not well thought-out if it does not account for diversity. She is right). The solution, then, must include an organizational analysis and focus on strategies beyond what people from underrepresented groups must do to assimilate. The first step is getting leaders to understand that the problems are also embedded in our cultures, structures and accepted behaviors before moving any further.
The questions every organization should frequently be asking are, "Do our leaders know what inclusion looks like and what is expected of them in being inclusive? Are we behaving in ways consistent with our stated values?" We must ask ourselves these questions repeatedly as we work through making changes toward our diversity and inclusion goals.
Take a look at where problems hide in the organizational DNA
After acknowledging that a significant part of your diversity and inclusion problem is the organization, culture and processes, then you are ready to begin analyzing for blind spots. Follow up your implicit bias training with an analysis of blind spots in your most critical talent-development processes. Do this with all training you deem to be important and impactful for your leadership and the organizational culture. Look at everything from your forms to your informal practices, unspoken rules and expectations. Do the same for cultural competency and how well your organization works across differences. Cultural fluency is a key aspect of creating inclusion that often gets neglected and is why so many diversity and inclusion strategies have historically focused on what I call "fixing the minorities." It is one thing to invite diverse talent to your organization. It is another thing altogether to have leaders and teams that are able to work across cultural differences and have those cultural differences be integrated to the culture of the firm. Assess your leaders, those in key talent-management committees and decision-making roles, as to how they work and flex across differences. A useful tool that we have used at Shook, Hardy & Bacon is the Intercultural Development Inventory (IDI). Once you have assessed your leaders, tell the organization how it is doing with welcoming and leveraging differences effectively.
Use metrics and analysis that show where you lose people to assess what aspects of your business practices contribute to the problem. As a diversity professional and inclusion strategist, my ability to persuade for change has been heavily enhanced by my ready use of current data, information from pulse surveys, stay interviews I have conducted (although I don't tell people it is a stay-interview when I converse with them), and personal stories that capture the experiences of our diverse talent. After you have obtained your metrics and analyzed them, create a solution from there. It is critical that we move beyond education; education and awareness should tie to the implementation of concrete individual and organizational strategies.
Accountability, accountability, accountability
I will be frank: we have all worked at firms where there is that problem partner who does everything discussed in the implicit bias session. The problem partners tend to skip the valuable equipping and awareness sessions organized by the D&I Committee or firm leadership. And in many of our organizations, we knowingly give them a pass on their behavior and the impact on our talent because the partner is a good trial attorney or big rainmaker. We don’t factor in their impact when addressing issues of engagement and advancement to mitigate the outcomes. It may be the partner who gives all the women attorneys the “office housework,” or the one who considers attorneys of color only for the pitch where the client is diverse or diversity is important, conveniently forgetting them when other work comes in, or even the partner who only sponsors and grooms “good ol’ boys” who remind him of himself despite having star performers from underrepresented groups on the team. How we respond to the actions of such partners in our organization communicates the organization’s values more than the mission statement and leadership professions. This process should not be about shaming or blaming individuals but rather providing a safe environment that intentionally promotes and insists on growth and positive change.
Accountability is not just about penalties and restrictions—we should also reward and encourage the behavior we want to see. Accountability can also be fun. As part of Shook’s "It's All About Inclusion” Campaign, we had people in the firm write a note of thanks to someone who has been inclusive towards them or invested in their career. Those who received a card were delighted. We did not anticipate the level of positive energy this activity would elicit. It was a simple way to encourage people to notice inclusive behavior and to express gratitude. We chose this activity also knowing that expressing gratitude has an impact on morale. Since we initiated this activity in December 2015, employees continue to request cards to use, and some of our partners even use them with clients. The lesson? Make accountability fun, positive and infectious.
Other accountability measures include consistent measurement as well as interpretation and discussion of those measurements to determine how the organization can improve. Accountability also includes communicating progress and obstacles to the organization. Some people establish financial incentives for progress and tie progress in diversity and inclusion on teams to compensation for leaders. Each organization must assess what level of accountability is effective. Let’s place more energy on this aspect of change management at our firms.
Part two in this series will explore additional strategies for increasing and fostering diversity and improving inclusion in law firms, including investing in long-term plans and customizing solutions to better fit the needs of the organization.
Kori S. Carew is Shook, Hardy & Bacon’s Director of Strategic Diversity Initiatives. In this leadership role, she equips and empowers leaders to interrupt bias and manage diverse teams inclusively, crafts solutions designed to disrupt systems and achieve equitable results, and equips diverse talent for success. Kori integrates her experience as a trial attorney and law firm partner into the firm’s diversity and inclusion strategies.