In the two years since GC last turned the spotlight on diversity and inclusion in the US, both the structure of the narrative – and, perhaps more importantly, the prominence afforded to it in the mainstream – has undergone a significant shift.
The impact of storytelling from high-profile individuals, together with similarly prominent incidents involving household-name companies, has shone a bright light on a host of diversity and inclusion issues, forcing companies and their counsel to take a hard look at their own policies.
As companies look inwards to pinpoint and understand their own locus on the spectrum of inclusion, one key problem emerges, according to Caren Ulrich Stacy, founder and CEO of Diversity Lab, an organization that promotes diversity and inclusion in the law.
‘“Inclusion” sounds very vague and amorphic. It’s like the word “culture” – no one truly knows what it is, unless you define usually a really bad culture or a really good culture. Inclusion seems to be on a similar scale.’
Verna Myers, vice president of inclusion strategy at Netflix, is often quoted as saying: ‘Diversity is being invited to the party, and inclusion is actually being asked to dance.’
In other words, the recruitment of diverse individuals is only one step towards true equality of potential, because without an unobstructed pathway to quality work and opportunities for development, enduring diversity is an illusion – and retention won’t happen.
Or to put it another way: ‘I think that when we talk about the war for talent, companies and law firms need to take care of their existing talent,’ says Christine Castellano, former general counsel of Ingredion Inc.
Hugh Welsh, general counsel of DSM North America, had an epiphany in his understanding of the need for inclusion after feeling like an outsider during business trips to company headquarters in the Netherlands.
‘It finally dawned on me that, for the first time in my career, I wasn’t part of the majority culture in these environments, and it altered my behavior. It made me hesitant, it made me less likely to speak up, it made me much more aware and in tune with all the little gestures and words that were made in the room – and that was exhausting,’ he explains.
the recruitment of diverse individuals is only one step towards true equality of potential.
‘After a few of those trips, I said to myself, if I feel like this when I go there, how do my female employees, my racial minority employees, how do they feel working in an environment that’s predominantly American white male?’
A blueprint for inclusion?
Developing a truly inclusive workplace – and an understanding of where flexibility or an openness to new approaches might be impactful – is a work in progress for most corporations, of course, and one that needs to be backed up by data. But are legal departments measuring the right things?
‘There are two different things in terms of inclusion that are very important. One is perception and one is reality. Perception is measured by whether or not everyone feels included: do they feel like they belong, do they feel like they are getting equal access to career-enhancing work and career-enhancing people?’ says Ulrich Stacy.
‘But the other half of that is the reality: are people included, are they getting equal access to work with different types of people who are influential in and outside of the organization? Are they getting equal access to the work that we know will help advance them? And that’s the piece that’s hard – and that’s the piece that has to get measured. I think for years we’ve measured the perception, and we’re really just getting to a point where we’re starting to measure the reality, and then fixing it.’
Ulrich Stacy argues that law firms and legal departments tend to work backwards – making assumptions about inclusion gaps in their teams, and then devising initiatives, such as mentoring schemes, to fill them, without any data or baseline against which to benchmark. In response, Diversity Lab and Chiefs in IP [ChIPS], a non-profit connecting women in technology, law and policy, have collaborated to design an ‘inclusion blueprint’ survey, intended to isolate and survey areas – for example, compensation, promotion, tracking access to career-enhancing work – that lead to inclusion and, eventually, a more diverse workforce. The hope is that the survey will allow teams to better understand their own efforts, benchmark themselves against other teams and, as data accumulates, understand specifically and statistically what inclusion activities correlate to higher diversity.
‘I think the only way we’re going to solve this challenge of the legal industry needing to be more inclusive and diverse, is we’re going to have to do this in collaboration, not against each other, or in competition with each other, shaking our fingers at each other. There is definitely a concerted effort for law firms and legal departments to work together in collaboration to solve these challenges. And if working in silos or in isolation as an organization is no longer working, then we have to try to collaborate,’ says Ulrich Stacy.
Some of the general counsel we interviewed were taking a more collaborative approach to supplier diversity, shouldering some responsibility for external provider achievements in D&I and emphasizing the importance of supporting law firms to achieve diversity – rather than penalizing them.
Wesley Bizzell, senior assistant general counsel at Altria Client Services Inc, trained as a social worker alongside his legal qualifications.
‘One of the foundations of social work is that you don’t start from where you want the client to be, or from where you think they should be, but you start from where they are,’ he explains.
‘The same is true when dealing with D&I within organizations. Corporations and law firms are made of people who may be in vastly different places in their D&I journey, so sometimes the work is slower than you’d like it to be – sometimes it takes more time to get the individual on board, sometimes it takes a little bit of effort to get leaders to talk about D&I issues because they were not brought up in a corporate culture where that was encouraged or expected. But I’m a firm believer that there are ways to reach almost everyone.’
The hope is that the survey will allow teams to better understand their own efforts.
At Peabody Energy, chief legal officer Verona Dorch’s legal team meets with affinity groups and law firm associates to discuss how the legal team can help achieve inclusion goals and, as a result, has implemented a system of writing letters to law firm committees handling promotions, highlighting any excellent work done by associates. ‘We’re here to influence, not criticize,’ she says.
Accountability
Yet many believe that a crucial piece of the puzzle – that of true accountability – is still missing from many D&I efforts.
‘Most law firms and legal departments don’t have diversity and inclusion goals, at least not ones they say out loud and are held accountable for – which is so different from every other business thing that matters,’ says Ulrich Stacy.
‘A legal department of a Fortune 500 company is expected to report their earnings on a quarterly basis, they have to be transparent and they have to be accountable to the shareholders, to the board, and to the public to some degree. So if diversity matters as a business imperative, why aren’t we transparent, why aren’t we accountable, and why aren’t we reporting where we are and what we’ve done to our shareholders or to our board or to the public?’
Many of the general counsel we spoke to are asking themselves the same question, and coming up with novel approaches to increasing transparency and accountability. Starbucks, for example, published its civil rights assessment report online, alongside unconscious bias training and certain diversity stats, on its website.
A topic of controversy is whether inclusion and diversity performance should be connected in some way to compensation measures, and some GCs support such a measure.
‘We haven’t done it yet, but that is a big one, that’s an important one, that could be a very effective tool,’ says Carrie Hightman, CLO of NiSource, Inc.
Adds Dorch: ‘We don’t yet tie metrics to people’s goals, and that is where I think it would be most effective. The companies where I’ve seen it take hold are the ones that start to tie it to individual goals and commitments, which then moves the company’s commitment.’
Doing things differently often means accepting an element of risk into the process, and perhaps an awareness that too much rigidity in criteria, whether in hiring or promotion, can mean overlooking diverse individuals for the sake of missing skills traditionally perceived as essential – effectively missing the wood for the trees.
Private Practice Perspective: Working Together for a Better Future
Achieving diversity has long been a struggle for law firms. Over the last several years, however, corporations have catalyzed change through carrots and sticks – promising and withholding work depending on whether diversity objectives are met. More can be done.
As the readers of this publication well know, corporations have pushed firms to attract, retain and promote diverse lawyers by demanding that firms demonstrate their diversity before they are awarded – or are even considered for – work. Among other things, companies grade firms on the diversity of their associate, partner, and leadership ranks, as well as the staffing of their matters, and dole out or deny assignments depending on the scores achieved.
This system of carrots and sticks effectively focuses firms on making meaningful progress on diversity. At Weil, we have adopted the score-card model to apply it to our own attorneys, grading our most senior leaders based on their success in meeting a variety of diversity objectives, including their own personal involvement in the firm’s diversity efforts.
More can be accomplished if companies take a more active role in developing diverse firm lawyers to meet their legal needs. As I know from personal experience, mentoring is critical to a diverse attorney’s prospects for advancement. Mentoring by senior law firm partners not only helps diverse attorneys improve their technical lawyering skills, it also provides a vehicle to introduce diverse lawyers to influential firm leaders, the business aspects of firm management, important firm clients, and business development initiatives. In short, mentoring helps diverse attorneys learn all of the non-technical skills that are equally important to climbing the ranks of a major corporate law firm.
Who better to mentor many of these aspects of lawyering than the in-house lawyers whom diverse attorneys hope to serve? In-house lawyers are uniquely situated to mentor young, diverse firm attorneys in the most critical aspects of client relations and development. Through taking the time to teach diverse firm lawyers about their businesses and the legal issues that are unique to their companies, what matters to them as clients, how they can be best served, and introducing them to other influential potential clients within their organizations, in-house lawyers can set diverse lawyers up for a meaningful long-term relationship with their companies, which will critically impact the attorney’s prospects for success at the law firm by enhancing the ‘business case’ for their retention and promotion.
But in-house lawyers can achieve even more through mentoring. By introducing diverse firm attorneys to in-house lawyers at other companies in their industry, in-house lawyers can provide diverse firm attorneys opportunities to make potential client contacts and develop business that would otherwise not be available to them. In turn, these diverse attorneys would be able to use all of the skills learned from their mentors to make the most of those opportunities. All of this would meaningfully support the diverse attorney’s prospects for retention and advancement.
And what do the clients get out of all of this mentoring? They get outside attorneys who are better able to serve them because they know their organizations and their industries better. They also get the satisfaction of having made a meaningful difference in a diverse attorney’s prospects for success and in creating more diverse law firms.
At Weil, we believe so strongly in this hypothesis that we have initiated a pilot program with a handful of our clients through which senior in-house lawyers serve as mentors to our diverse associates. We are extremely grateful to our client-partners for their participation in this program. It is too early to say what level of success this pilot program will achieve, but it is hard to see how it will not be successful.
Chris Garcia
Partner and co-chair of Diversity Committee
Weil, Gotshal & Manges LLP
‘When trying to get women on the board, you can’t insist that people have a CEO background, because you’re going to find maybe five women who fit that. You have to be willingly flexible on the requirements,’ explains Dorch.
Kimberley Harris, general counsel of NBCUniversal, adds: ‘We need to think about relevant experience in a much broader way – identifying skills that we need that might be expressed in a less familiar way … I had the benefit of that broader, more flexible thinking – I had no experience in the entertainment industry when I was hired as general counsel of NBCUniversal, but the CEO took a risk on hiring somebody with a different background. That broader thinking gave me an opportunity I wouldn’t otherwise have had, and, in turn, I added a different perspective to the executive ranks at NBCUniversal.’
Storytelling
On top of a thorough, metric-based understanding of challenges and a clear system of accountability, is the power of storytelling – the qualitative aspect that adds flesh to the bones of data. Much understanding and awareness in the inclusion and diversity context can be built through the telling of personal stories, and what campaigns like #MeToo have illustrated is the power of shared experience to build empathy and momentum.
The legal profession, often risk averse and traditional, can especially benefit from testimony and its potential to remove taboos – particularly in the field of mental health. Castellano talks candidly of her own struggle with burnout, and the importance of storytelling:
‘The biggest piece is really to remove the stigma around the topic of mental health and bring it into the light of day. The next generation of lawyers needs to know that they are not alone’.
An even more powerful tool in the arsenal of inclusion is that of role-modelling. Michael Wasser, assistant corporation counsel at New York City Law Department, has muscular dystrophy and, astonishingly, has never encountered a similarly diverse attorney as an adversary. He is keenly aware of the impact his professional presence can have, for both diverse and non-diverse colleagues:
‘Just me being in a room at a closing or in court, sitting across a table from an adversary or discussing things with clients – the importance of that is immeasurable. The best way to learn is by observing, and the best way for that is to have people with disabilities more visible in every facet of life,’ he explains.
‘Frequently I’m the first person that non-disabled people have a professional experience with, and that takeaway is enormous, because these people go back to their firms, go back to their lives in business, and maybe there’s a conversation at the dinner table, or maybe their kids hear something about it.’
Doing things differently often means accepting an element of risk into the process.
The New York City Law Department frequently makes introductions between attorneys with disabilities, and Wasser places great emphasis on the importance of providing support and ‘a friendly ear’ to others, as well as hosting department tours for high school and college students with disabilities, to remind them that a legal career can and should be on their radar.
In addition, he believes that more community outreach would be of enormous benefit to overcome attitudinal barriers and broaden the horizons of people with disability.
‘Engage the community: invite schools over and have open house – like our disability mentoring day, or “bring your children to work day”. Things like that are really important, because you want to teach people from a young age that there are options and choices – that inclusion works.’
Bizzell also tells of how storytelling can boost representation, even when role models are not obviously available:
‘At MOSAIC, our LGBTQ employee resource group at Altria, we have utilized storytelling to create empathy and understanding within our employee base and create instances where people who may not think they have met an LGBTQ individual, or who may not have LGBTQ individuals in their group of friends or family, get it.’
Through the collective effort of sharing experiences – in-writing or in-person – individuals can bypass stereotypes and understand what true diversity looks like. But that involves both candid disclosure, and the buy-in of leaders and team members to confront issues. It means that challenging concepts must be continually addressed, and assumptions disrupted.
As we continue the journey towards a more inclusive and diverse profession, the future looks bright, however, as those assuming leadership roles demonstrate higher and higher expectations of inclusion and diversity, and are increasingly willing to vocalize them.
We hope that this report has provided some potential methodologies to explore, and perhaps sparked some ideas for growth in your own legal department.
‘It’s important to have conversations that are difficult, and that require us to lean into that discomfort. The typical workplace attitude, certainly from the 80s, 90s and early 2000s, was that “It creates too many issues, it’s disruptive, it’s not helpful”, but I think we have reached a point where we realize that those conversations are necessary for us to truly develop that inclusive environment, culture and ecosystem,’ says Bizzell.
Striking a Balance
We asked some of the participants in our report for their sense of how the recent avalanche of stories and related activism has impacted corporate and legal life.
more community outreach would be of enormous benefit to overcome attitudinal barriers.
‘Taking the #MeToo movement as an example, there’s not enough data yet to say exactly what the impact has been but, anecdotally, it’s been both positive and negative. It’s been positive because more folks who have experienced sexual harassment feel comfortable coming forward, and law firms and legal departments have done a better job of making sure that they have structure and formal policies and procedures in place to manage complaints and to manage investigations,’ says Ulrich Stacy.
‘The downside – and there are statistics to prove this – is that in a lot of instances men are reading about this and fearing being wrongly accused, or fearing being perceived as bad, and they are pulling back from mentoring and from going on work trips with women that will take them somewhere overnight.’
That’s an issue – with the current makeup of many corporates, pressing ahead with diversity needs people in positions of power to work with people coming through the ranks. But Welsh is clear that senior executives – legal or otherwise – need to search for solutions instead of excuses.
‘I think the Time’s Up and #MeToo movements have catalyzed a whole cottage industry of sexual harassment compliance programs, and provided an excuse for a whole generation of middle-aged white men like me to say “Oh wow, I’m no longer going to take one-on-one meetings with women in my office or have business dinners with female employees, because it’s just too risky,”’ he says.
‘It sets back the concept of inclusion a great deal, because we know that the next generation of leaders are developed and promoted not just from an annual review or the results on a project and the financial results of the business, but as a consequence of sponsorship, which happens informally in these one-on-one meetings and dinners while travelling together.’
For lawyers, in particular, the informal nature of #MeToo and the timescale of allegations causes a specific problem of process. Castellano articulates the difficult position of in-house lawyers in balancing a culture of listening with fairness when dealing with allegations:
‘I think it’s important, with any type of investigation, that it is a real investigation. This is difficult with allegations that date back a decade or more, particularly when they cannot be proven – there’s no way to factually investigate them,’ she says.
‘I think in the workplace, when a #MeToo allegation comes forward, it needs to be investigated with the same rigor as any other allegation, and I think it’s particularly important that you enforce confidentiality around the investigation, because we are in a time period where people feel that their entire career could be destroyed based on an allegation alone. But having said that, we need to continue to encourage people to speak up and to make use of the compliance communication channels within their corporation. If the channels aren’t being used, we need to take a look at what we could do better, how we could make it easier for employees to speak up.’
In the pages that follow, we see a striking variety of approaches to inclusion and diversity on display in the leading corporates and organizations that feature in our updated report. But many common threads were also identifiable – culture, individuals and iteration being uppermost in the minds of those legal professionals driven to foster inclusive teams and corporations in the US and beyond.
