Can We Get Beyond Virtue Signaling?
Every year around this time I watch as law firms celebrate Black History by honoring historical figures and amplifying Black voices for about 28 days. As the calendar changes, they shift to paying tribute to women for about 30 days. And then, later in the year, firms that make Working Mother’s Best Companies lists boast about their placement.
I have always wondered if the firms who put together and post these important tributes are able to see within their own ranks the ways in which diverse attorneys are hired, treated, or even regarded.
The answer, sadly, is no. At least not in any meaningful way unrelated to garnering social media likes or making magazine lists. On February 16, 2021, the American Bar Association Commission on Racial and Ethnic Diversity in the Profession released its first 2020 ABA Model Diversity Survey (“MDS”) report.[1] I read the report with sorrow. It seems that in the two decades I have been in practice, not much has changed. The findings should be read, read again, and absorbed. Here are a few of the findings:
· White attorneys are dominant in law firms (the lowest percentage was 70%) at the associate level. Their dominance is even more pronounced at non-equity and equity partner levels (lowest is 84% up to 93% depending on size of firm).
· At the associate level, male and female representation is about even. However, representation diverges as attorneys become more senior. 70% of non-equity partners are men; 80% of equity partners are men.
· Regardless of level, LGBTQ+ representation only constituted between 1% to 2% of attorneys.
· Attorneys with disabilities constituted only around 1% of associates and even less (one half of one percent) for both levels of partnership.
· White attorneys constitute the largest number of hires at the associate level (75%). With the exception of Asian attorneys (who made up between 6% and 11% of hires at the associate and non-equity partner level), all other racial minority groups remained below 5% of hires at all levels.
· 70% of firm leadership were white men, 20% were white women, 7% minority men, and 3% minority women. The average percentage of LGBTQ+ firm leadership seldom rose above 5%. Except for very small firms, attorneys with disabilities accounted for less than 1% of firm leadership.
But what about the pipeline? According to a study sponsored by the American Bar Foundation and posted in the spring of 2020[2] women have outnumbered men in law school since 2016. Furthermore, women have made up roughly 45% of law school enrollment from 1999 until 2015. The report also published the following chart:
There are a few other interesting findings from this study (also worth a read):
· Women, Black, and Hispanic students are disproportionately enrolled in lower-ranked schools.
· The majority status of women ins law school is almost wholly due to the substantial predominance of women among Asian, Black, and Hispanic students.
Clearly work still needs to be done. And as the MDS report also shows, having diversity initiatives and policies in place makes no impact. Diverse attorneys face discrimination, harassment, implicit and explicit bias, microaggressions, negative stereotyping, and a host of other obstacles throughout their legal career journey. I hope I see meaningful change in my lifetime. I hope firms are committed to collecting and analyzing data on diversity over time. I hope firms are homing in on the attorneys they do have and actively encouraging and supporting their individual success. I hope firms are constantly reevaluating and fine-tuning the recruitment and hiring process. I hope firms are actively seeking to weave diversity and inclusion into the culture. In the meantime, I will scroll through social media and hope these firms work as hard at taking proactive and intentional steps for diverse attorneys and attorneys-to-be as they do at creating eye-catching and moving tributes.
Footnotes:
[1] https://www.americanbar.org/groups/diversity/DiversityCommission/model-diversity-survey/
[2] Li, Miranda and Yao, Phillip and Liu, Goodwin, Who's Going to Law School? Trends in Law School Enrollment Since the Great Recession (March 30, 2020). 54 U.C. Davis Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3559213