Bias Is A Bottom Line Issue

By Valerie A. Fontaine

February 1996

In the aftermath of the Simpson verdict, the Million Man March, California's Proposition 187, and the current battles over affirmative action, diversity in hiring is a "hot issue". Beyond being morally and politically correct, bias is a bottom line issue. There are costs resulting from a workplace which is perceived as hostile to women and minorities, and there are benefits to a diverse work force. This is as true in the legal profession as in any business. While law practice no longer is the exclusive province of white males, it will take sensitivity and conscious effort on the part of legal employers in the recruitment, training, retention, and promotion of women and people of color before significant bottom line benefits can be achieved.

In 1970, less than 5% of lawyers in the United States were female. By 1980, that number had risen to 12%, and to 20% by 1990, with a projected 33% by the year 2000. Today, approximately 87% of all law firm partners are male and the number of female partners is increasing by only 1% per year. At that rate, it will be a long time before women catch up!

While women have far to go, on the whole, they are doing better than people of color, both male and female, in the legal profession. In 1970, fewer than 2% of the lawyers in the United States were non-white. By 1980, that number increased to 4.1% but in the last 10 years, that number has grown only to 4.9%. Although the largest 250 law firms in the United States have, on average, eight or more female partners, they have fewer than one partner of color. The total number of African-American, Hispanic, Asian and Native American partners still totals only 2.5%. According to a recent National Law Journal survey, nearly one-fifth of the largest 250 firms have no partners of color and almost a quarter have only one.

What many firms fail to realize is that there are bottom-line benefits to developing a diverse legal profession. Given the changing demographics of the U.S. population and the globalization of the legal profession, a policy of inclusion reflects reality. Promoting diversity allows a firm to recruit the best and the brightest candidates of all backgrounds. It is good public relations, and engenders loyalty and higher morale. Additionally, expanding the candidate pool increases networking and rainmaking opportunities, thus enhancing a firm's ability to attract and serve a broader client base. It raises the comfort-level of diverse client prospects who want attorneys "like them" - who speak their language and understand their culture - to handle their business.

On the other hand, ignoring diversity issues can negatively affect the bottom line. A work environment which is perceived as discriminatory costs an employer through lower productivity, lower morale, higher absenteeism, stress, medical bills, wasted recruitment and training costs, and, possibly the defense of claims which may result in the payment of fines and damages.

To increase the number of lawyers of color in major law firms, at least eight bar associations, including those of San Francisco, Los Angeles County, New York City, Chicago, and the District of Columbia, have adopted hiring goals. In San Francisco these goals, accepted by almost 100 local law firms and corporations, call for 25% of the associates and 10% of the partners to be "minority" by the year 2000.In New York, more than 135 law firms and 40 corporations and, in Los Angeles, over 30 firms have accepted the goal that 10% of all new hires should be attorneys of color.

A number of these policies, however, have a caveat which can significantly water down their impact: They are "subject to the demographic availability of minority applicants and the hiring criteria of such firm or corporation". Thus, firms can state that they wish to hire diverse candidates, yet avoid doing so by insisting that those candidates have graduated at the top of their class or be a member of the law review at one of the top 20 schools in the nation. Very few candidates, white or non-white, fit those criteria, giving rise to issue of a double standard, or holding candidates of color to a higher standard, than other candidates. An employer committed to hiring a diverse group of lawyers must re-evaluate its hiring criteria and determine whether other credentials, such as work experience and community leadership, might be equally indicative of excellence.

To hire more women and attorneys of color, legal employers must expand their sources of candidates. They can do this by making contacts with and seeking recommendations from specialty bar associations; non-white and female judges who may recommend former clerks; law school placement directors and female and non-white faculty members; campus organizations for women and people of color; and specialty committees and sections of non-specialized national, state and local bar associations. Legal employers might send representatives to job fairs which are targeted to people of color, and sponsor, or co-sponsor with other interested firms, programs or receptions for female and non-white students and potential lateral hires. Employers also could encourage firm members, not necessarily female or people of color, to act as mentors for non-white or female students either directly or through a bar association program.

To further expand and diversify the candidate pool, on-campus recruiting efforts should include law schools with high female and racially mixed enrollment. The firm's current non-white and women attorneys should be involved in all stages of the interviewing process. All interviewers must be trained to be sensitive to inappropriate questions, comments, and activities, and to communicate a sincere commitment to diversity. All candidates should be asked the same questions, and requested to provide the same documentation such as law school transcripts, writing samples, and references.

After hiring, legal employers must take steps to retain, develop and promote female and non-white attorneys in order to maximize their contributions to the firm. At minimum, it is essential that these attorneys be given the same opportunities and resources as other lawyers in the organization. All attorneys must be given equal access to challenging work assignments, professional skills training, client contact, business development opportunities, social interaction with peers and partners, and meaningful evaluations and feedback. The firm should ensure the fair and equal allocation of resources such as secretarial and support staffing, office services, overtime, research materials, and so forth, to all of its attorneys, regardless of their gender or race.

Beyond that, employers should take additional steps to foster diversity in their ranks. Firms can demonstrate a commitment to diversity from the top down by integrating in-house management, committees, and task forces, and holding management accountable for the development and promotion of women and people of color. The lack of role models often is cited as a critical reason for the underrepresentation of women and people of color in the profession. A firm can help create positive role models by placing female attorneys and attorneys of color in high-visibility and influential roles within the organization's management structure. Mentoring is an effective strategy toward fostering role models.

Social events often play an important role in an attorney's career advancement. These events should not be held in discriminatory (or topless!) clubs or any other venue where an attorney might be uncomfortable. And firms should not be involved in entertainment or activities which could be offensive to any of their members. At social occasions, a firm should make it a point to invite female and racially diverse clients, prospects, co-counsel, judges, and public figures. This should dispel the image of the "old-boy network".

To retain women and non-white attorneys, a firm must create a hospitable environment. Each attorney must be treated as an individual. Often, for example, African-American male attorneys complain of being confused with other African-American males, Hispanic females with other Hispanic females, and so on. It is imperative not to impute the attributes or failures of one in a group to all members of that group. Furthermore, female and non-white support staff must be treated well, and not necessarily paired with female or non-white attorneys.

Additionally, legal employers should accommodate religious or cultural holidays, dietary restrictions, and dress requirements as far as possible within the business context. In a diverse world, it is not sufficient to treat all people the same; rather, all people should be treated fairly, with respect for their differences.

To reap the bottom line benefits of diversity, more must be done to recruit, develop, and promote young female and non-white attorneys so that they can reach their full potential. A small investment now in time, effort, and money in the recruiting, training and mentoring of female and non-white attorneys can reap great dividends in the future for the individual lawyers, their firms, and the profession as a whole.