A lack of diversity and inclusion has plagued the legal profession for decades. Despite incremental progress in hiring, law firms haven’t been successful in retaining women of color lawyers in the associate ranks or promoting them to partner.
While the COVID-19 pandemic has laid bare the stark realities of the legal profession’s diversity, equity, and inclusion challenges it may offer a catalyst for positive change—if the right steps are taken.
COVID-19’s Impact on Women
According to the Women in the Workforce Report by McKinsey & Co. and Lean In, in the five years preceding the pandemic women and men left the workforce at similar rates. Since the onset of COVID-19, however, 1 in 4 women have considered downshifting their career or stepping out altogether, as compared to 1 in 5 men.
Many women have reported this shift due to childcare, schooling, and family obligations exacerbated by the pandemic. Mothers are bearing an unequal burden, “as they are disproportionately expected to fulfill household and caregiving responsibilities,” according to Catalyst’s report The Impact of COVID-19 on Working Parents. As noted in a recent Harvard Business Review article, “if left unaddressed, this exodus could set women’s progress in the workplace back a generation.”
Analyzing the greater impact of the “shecession” on women of color, the Institute for Women’s Policy reported that the number of Black women who are employed dropped 9.5% between February and December 2020 and Latinas by 8.3%. This was a much steeper change than for white women (5.2%).
Moreover, the Women in the Workforce Report says that the pandemic has exacerbated “distinct, and by and large worse, experiences at work” for Black women. Roughly half of Black women report being the only members of their race and gender at work. They are more likely to feel unwelcome in their organizations, are uncomfortable talking about racial inequity (42%), and feel like they cannot share about the impact of current events on their lives or people in their communities (22%).
Last Hired, First Fired
Retention of women of color lawyers has been a challenge since before the pandemic. Pre-pandemic, attrition among women of color, especially at the associate level, was prevalent. According to the Vault-MCCA 2019 Law Firm Diversity Report, which surveyed more than 230 law firms, minority women represented almost 19% of first- and second-year associates who left firms in 2018. In addition, 12% of all attorneys who left the firms in 2018 were women of color—the highest figure recorded to date.
Further back, the massive associate layoffs following the 2008-2009 financial crisis hit women and minorities the hardest. Black or African American associates surpassed the 2009 level of 4.66% for the first time in 2019. However, the share of Black or African American women associates (3.04%) finally surpassed the 2009 figure (2.93%) for the first time just last year, according to the 2020 NALP Report on Diversity in Law Firms. This amounts to an increase of just one-tenth of a percentage point over these 11 years.
Joel Stern, CEO of NAMWOLF, and others have urged law firms not to respond to the pandemic the same way they did to the financial crisis, and they’ve had some success. Both Stern and Sandra Yamate, CEO of the Institute for Inclusion in the Legal Profession (IILP), report that in 2020, firms have been less willing to immediately use layoffs as a strategy to maintain profit levels.
We saw many firms “go to across the board salary reductions and furloughs to avoid outright layoffs,” Yamate said. “A number of firms also seemed to have learned a lesson from 2008: if you lay off your women and minority associates because your system of work assignments has translated into their being the associates who have lesser billable hours and lesser experience compared to classmates, recruiting more women and minorities after the downturn has passed is going to be more difficult.”
Priorities for Retaining Women of Color Lawyers
There is no panacea for this pernicious problem of retaining and advancing women of color lawyers. The concerns of all women aren’t the same and the concerns of all people of color aren’t the same. The risks of stereotyping and making improper assumptions certainly exist. But the status quo isn’t acceptable.
I reached out to several people in the diversity, equity, and inclusion space to gain insight into approaches that may help organizations retain female lawyers of color.
- Make sure firm leadership is fully committed. According to Orlando R. Richmond Sr., a partner at Butler Snow LLP, one aspect of the evaluation of firm leadership should be progress on diversity and inclusion initiatives. He advocates an intentional and focused effort, perhaps a dedicated committee or person, reporting directly to firm management. Joel Stern of NAMWOLF agrees. “D&I can’t be a hobby or a part-time initiative,” he said. An initiative may be seen as something that will be abandoned once a crisis has passed, but D&I needs to be an integral part of the organization’s culture and value system.
- Institute work allocation systems. Firms should decide what objective tasks associates need to master as they develop professionally and make sure that all attorneys have an opportunity to work on matters that will develop them in these areas. According to Sandra Yamate of IILP, work allocation systems are much more common in the UK than the U.S. and take time and study to properly design and implement. However, given that most attorneys are working remotely, an organized system for allocating and assessing work is more important than ever.
- Provide mentors and sponsors for diverse lawyers. Navigating the law firm environment is difficult for many new lawyers, and the journey may be complicated by cultural differences that inhibit drawing the kinds of commonalities that lead to good working relationships.
To remedy this, Richmond advises that firms should assign mentors to help young diverse lawyers traverse the firm’s systems and integrate into its culture. This is especially important during the pandemic, when attorneys are working remotely.
Yamate pointed out that “for minority women lawyers, the lack of in-person visibility and the opportunity to build relationships with rainmakers or develop clients while everyone is working remotely is going to hit them disproportionately hard. If they were not in the upper mind of a partner who needs an associate to handle the work on an important matter before, they are really being overlooked now.” Firms should also match their diverse employees with sponsors, or a person of influence within the firm who will advocate on their behalf. [Watch Cook County Judge Diane Shelley and BWLA President Kenyatta Beverly discuss the importance of sponsorship.]
- Track and use firm data. Atlanta law firm Drew Eckl & Farnham began tracking percentages of women and minority lawyers at each phase of their careers and identified a gap at the non-equity partner level. Drew Eckl crafted a new training program for senior associates called “Path2Partnership,” which launched in January 2019 to stem associate attrition and help more associates advance to partner.
The firm is making sure its diverse associates participate. In the 2020 class, 60% of the candidates are women and minorities and, of those, 13% are lawyers of color. Drew Eckl set clear, objective admission criteria for Path2Partnership to eliminate unconscious bias. The program is open to everyone who meets certain billable hours targets, plus years of experience in practice and working at Drew Eckl.
- Sign up for the Mansfield Rule. The Mansfield Rule Certification, sponsored by The Diversity Lab, measures whether law firms have affirmatively considered at least 30% women lawyers, attorneys of color, LGBTQ+ lawyers, and attorneys with disabilities for leadership and governance roles, equity partner promotions, formal client pitch opportunities, and senior lateral positions.
Now in its fourth year, firms register and are audited bi-annually and certified annually. Ninety-six percent of firms said that after adopting the Mansfield Rule, their teams of lawyers participating in formal pitch meetings have become more diverse. In addition, significant majorities of firms reported that they appointed more underrepresented lawyers to their Management/Executive Committees and promoted an increased percentage of underrepresented lawyers into equity partnership.
- Re-evaluate origination credit. Origination credit is determined based on the value of revenue from clients or matters a partner has brought into a firm and is awarded to that partner in the compensation process, regardless of who does the work. This compensation factor can continue for a set period or as long as the client continues to send work to the firm.
Origination historically has been easier for white male attorneys as compared to women and minority attorneys. So, many firms are reportedly re-evaluating origination credit. Stern said this is a positive development because origination credit has had “a huge adverse impact on women and minorities.” Not only that, but it’s also not good for clients, incentivizing dysfunctional behavior like matter and client hoarding.
- Allow billable time for diversity efforts. This year, Hogan Lovells became another global firm to allow up to 50 hours of billable credit for approved diversity promotion efforts including “mentoring and sponsoring underrepresented professionals” and “participating in allyship and D&I action-oriented programs beyond education.”
According to Yamate, it has become more common for firms to allow such credit, and “most firms that do so allow up to about 50 hours of billable credit. Baker & McKenzie is an outlier allowing 125 hours in the U.S. and Canada and 50 in Mexico.”
- Respond to client demands. Clients will continue to demand and use hard data related to the diversity and inclusion efforts of law firms. Pressure from clients in this area has resulted in firms providing diverse attorneys opportunities for high client contact and meaningful work. Clients are also in a position to inquire whether the path to equity ownership in outside firms is not hampered by bias.
In 2004, Rick Palmore, now Senior Counsel at Dentons, initiated a Call to Action on behalf of the Association of Corporate Counsel. The Call was signed by over 100 chief legal officers of corporations pledging to make decisions based on the diversity performance of their outside counsel. [Rick will speak on DEI efforts from a general counsel’s perspective at the Commission’s The Future Is Now: Legal Services conference on April 29 – click here for more information.]
More recently, Bradley Gayton, senior vice president and general counsel of the Coca-Cola Company, sent a pointed open letter to outside counsel with explicit requirements that 30% of billed associate and partner time be from diverse attorneys, half of whom must be Black attorneys, or Coca-Cola will levy a 30% reduction in their fees. Similarly, Novartis required its preferred firms to meet specific diverse staffing commitments or risk losing 15% of the amount billed.
More informally, Stern of NAMWOLF notes an uptick in firms listening to the corporate buyer of legal services and engaging in cross-mentoring by exposing companies to their minority and women talent early in the process.
Finally, as written in the Thomson Reuters 2020 report Transforming Women’s Leadership in the Law, organizations should question all previous assumptions that may have prevented them from fully embracing agile working initiatives.
Reconsider them objectively, in light of actual experiences of the people who are working at your firm today, especially during the pandemic. COVID-19 has been a catalyst for enormous change and is an ideal environment to change your firm for the better, permanently.
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