On 25 May 2020, the murder of 46-year-old George Floyd made international news headlines. What followed were nationwide protests against police brutality that would ultimately make the Black Lives Matter (BLM) demonstrations a global movement.

In response, corporate America was quick to condemn social injustice and racial inequity. Companies and law firms vowed to re-examine their own diversity and inclusion initiatives and make tangible commitments to hiring, developing and promoting a more diverse workforce.

Time for change

One of the most under-represented groups in the legal industry is women of color. Those who have made it to the upper echelons of the legal profession have defied the odds, and their climb to the top has not been easy.

‘According to the US Census Bureau, the legal profession is the least diverse profession in the United States. When you look at racial/ethnic representation at the partnership level, the numbers are dismal – only 6.6% (Source: NALP). These numbers do not reflect the diversity of this nation,’ says Laurie Haden, president and chief executive officer of Corporate Counsel Women of Color (CCWC), a not-for-profit organization focused on advancing female attorneys of color and fostering diversity within the legal profession.

‘Over the years, law firms have sought to combat this problem with unconscious/implicit bias training and other programs and initiatives. Unfortunately, not much progress has been witnessed over the last 20 years.’

However, the global pandemic, together with the BLM movement and a fraught political backdrop, has made this a defining moment in history. Ashley Page, former general counsel at Learfield IMG College and current chief compliance officer at Endeavor, believes that people are now ready to acknowledge the need for change.

‘I really think that we are at a watershed moment in this country with respect to issues of race and gender. People are tired, frustrated and angry. There has just been a lot to deal with during the last presidency,’ she says.

‘Everything is just at a boiling point. So I think, for the legal profession, it has pushed many of us to take sides and discuss difficult topics within our professional circles. We have all had these conversations in private, but now we are bringing them into the workplace. It is pushing us to lead, it is igniting a fire under many of us to use our talents to help tilt our country in the right direction at this pivotal moment. It is pushing us to really question what we can do and whether we should be doing more as members of the legal profession.’

I didn’t know you were black

Traditionally, the legal profession has been a white-male-dominated industry. Despite more women entering law school than ever before, it is important to recognize that women of color continue to face a unique set of barriers.

‘I have lost count of the amount of times I have walked into a conference room to meet with a group of people who I have only emailed with or have spoken to on the phone. I have lost count of the amount of people who have said to me, “Oh, I didn’t know you were black? I talked to you on the phone, I didn’t know you were black?”, says Page.

Among the biggest challenges for women of color when navigating the legal profession are implicit and explicit biases. Page explains how these biases can often begin at law school.

‘Getting into Harvard Law School straight from college was a huge deal for me. It was just not the type of opportunity that was usually extended to people who looked like me, and came from where I came from.’

‘When I got there, I was so proud of myself and everything I had accomplished. But I immediately felt that my credentials and the validity of my presence were being questioned by my peers. There was an assumption that the only reason I was there was because I got an affirmative action spot. I was a black woman who did not come from an Ivy League, I did not go to a Exeter, therefore they could not accept that I was still their peer intellectually.’

Despite initially getting angry about having to face such assumptions, Page explains she was able to rise above being stereotyped. But having her credentials continually questioned was something she faced again when entering private practice.

‘Being told to work harder to fit in at a firm in order to position myself to get better opportunities was just one of many barriers I had to face,’ she recalls.

‘I have evolved to a point in my career where I am able to hit those issues head on, having risen up the legal ranks. Now I have the ability to impact people who might be having those types of experiences – by leading by example, and fostering the diversity and inclusion initiatives to help ensure the types of experiences I had become non-existent for the next generation. It has not always been an easy road, but being open and honest about my experiences lets other people know they are not alone.’

Where did you come from?

Despite running a legal team of approximately 30 people, Phyllis Harris, general counsel, chief compliance, ethics and government relations officer at the American Red Cross, shares how she has managed workplace prejudices.

‘In 2017, a former employer asked to meet an attorney who was visiting in-house counsel. I was to help him do the rounds and make sure he was across the assigned work. When I walked into the room this person – who is a good person – was talking to a colleague and the colleague stood up, because in terms of hierarchy I was higher in the ranks.

‘I stuck my hand out to introduce myself. He thought I was the assistant to someone in my organization. I was senior vice president, I had been practicing law at the time for more than 30 years, and I could not believe it. It was not just that he thought I was the assistant to the person who worked for me, he was confused and asked: “Where do you come from?”

‘As I tried to explain to him where I had come from, he remained confused. He asked me this question several times. What this showed me was that in 2017 he had very little interaction with women of color in the legal profession.’

In the end, Harris was able to develop a good rapport with the person and explain her position. Yet, she admits that this conversation illuminated a much larger issue. Although the legal profession has made some progress, women of color are more likely to be subjected to bias.

‘This is the change I am waiting for. We have brilliant people who come from extremely competitive law schools with incredible pedigrees. And it doesn’t matter where I came from – it matters that I am here now and this is who you are dealing with.’

Use your own imagination

Taking control of your career and being proactive is important for all legal professionals. Kimberly Banks MacKay, general counsel and corporate secretary at West Pharmaceutical Services, believes that means not letting others determine your opportunities.

‘Every successful woman, person of color, or anyone with a diverse background, has definitely experienced bias, either explicitly or implicitly. By way of example, early in my legal career, I was working at a company, and my own boss told me that I needed to accept the fact, that since I was now “a mother”, I was never going to be general counsel because anywhere.’

‘So given the clear bias, I believed him. I believed that I had no future at that company and got myself out of there. My point is I did not wait. Once I knew that my future would be limited by this person, I made the decision to leave. I have no problem assessing and accepting the realities around me and make my decisions based on that. Otherwise, I would be giving other people too much power over my career.’

MacKay is adamant that young lawyers should not internalize other people’s biases.

‘Early in my career, I saw a lot of talented lawyers become mired in self-doubt because of other people’s view of their capabilities. I was determined that was not going to be me.’

‘I recognize people have biases but, in the end, I am not going to let people’s perspectives limit the belief I have in myself. I like to say that you should  never let your career be limited to someone else’s imagination. Just because they can’t envision you as something or somewhere, it should not affect YOUR ability to  envision yourself in that way. So when somebody thinks I can’t do something, it just gives me fuel to make sure I get it done.’

For the love of law

Both law firms and companies have much to gain from employing diverse teams. Research indicates that diverse legal cohorts are more innovative and outperform teams that are not diverse.

‘Studies also show that companies that have diverse management teams are more profitable. This is a no-brainer. Why would any company or firm not readily diversify? With a diverse and inclusive workforce, you will have more voices of different cultural, racial and ethnic backgrounds that can have input on a case, a law and/or policy,’ says Haden.

Yet attrition rates of minority attorneys have remained high. So many women of color have managed to beat the statistics and navigate difficult workplace cultures by making their own opportunities.

‘Being a female lawyer of color, there are challenges along the whole way. I believe you have to set your goal, believe in yourself and think about building a network around you with people who have done what you want to do,’ explains Wanji Walcott, chief legal officer and general counsel at Discover Financial Services.

‘It is also very helpful to have a broad network. You need to surround yourself with people who can give you tough love when you need it. But, more importantly, find people who you can trust and are willing to help you.

‘You have just got to keep at it and let people know of your goals and aspirations. One of three things will happen: they are either going to be supportive and help you; they are going to block you; or they are going to be neutral. You will be lucky if they are somewhere between neutral and helping you. If they are blocking you, you may not be in the right place.’

Minority GCs who have navigated their way to the top of the legal profession have been passionate about the law and about ensuring the next generation has fewer barriers to overcome.

A movement not a moment

For the women of color who have shared their journeys to the top, discussions around diversity, equality and inclusion are more than a passing fad, and it is an imperative for law firms and corporations to follow through with real action.

‘I think diversity and inclusion is trendy right now. It is almost like a fashion trend you find in Vogue. But the reality of the situation is that real change is going to take a lot more time, effort, investment and resources. All that work is going to take a lot longer than any trend will last,’ explains Page.

Walcott agrees that more work is needed to achieve sustainable and lasting change within the legal profession.

‘It really is a matter of sustaining that momentum now and making sure it wasn’t just a moment, but a movement that will be supported over time,’ she says.

Ultimately, while conversations around boosting representation have been important, many leading general counsel, such as Harris, are still waiting for the profession to make more lasting advancements.

‘What is happening now in the world has been a wake-up call for many in the legal profession. We have heard a lot of great statements, but I am still waiting on more definitive action,’ says Harris.

‘With Covid we have seen women leave the workforce because they are responsible for looking after children and homeschooling. It is important to recognize that this has been an important time to not only see the race piece come into play, but also the gender piece. When you put the gender and race piece together, it has been an even bigger wake-up call for black women.’

Real, sustainable change has been hard to implement, even when firms and corporations make great pronouncements about their commitment to D&I initiatives, says Haden.

‘Diversity and inclusion must be more than lip service and quoting what the company’s handbook and policy state. To recognize sustainable change and impact, corporations and law firms must be committed to walk the talk. We need more people to take the lead and more companies and firms need to work to ensure D&I is ingrained in the culture, and not just left on the shoulders of one person.’

Through real action, leaders in the legal profession have a responsibility to take individual ownership of their DE&I efforts. These efforts are key to engraining this movement into the culture of organisations to create change not only in the legal profession, but within the wider community and beyond.

‘We just hired a gentleman of Asian descent who was a food scientist for eight years before he finished law school. I immediately went to offer him a job because it was just unique.’

Gail Sharps Myers, chief legal officer and chief people officer at Denny’s, illustrates today’s corporate drive for better diversity, often as a gateway to diversity of thought – the understanding that a multiplicity of backgrounds will generate a multiplicity of perspectives, acting as an engine for performance, creativity, innovation and, ultimately, more success.

But, as leading general counsel know, diversity is only half the story. Leveraging the collective experience of a diverse workforce is not as simple as hiring different people and alchemizing their perspectives into corporate gold. The secret something, more fundamental than a drive for diversity, is inclusion – creating the environment where diverse people can feel welcome enough to perform at their full potential. And the principles of inclusion are often the same regardless of the type of diversity you are looking to promote.

For Phyllis Harris, general counsel, chief compliance, ethics and government relations officer at the American Red Cross, that means ‘providing an avenue for everyone to thrive in the workplace without thinking about their gender, race, nationality or ethnicity. We provide opportunities for our employees to thrive they will  find the value that they will bring to the organization.’

For the legal profession in particular, the stakes for neglecting inclusion are much higher than the risk of losing out to competitors.

‘To truly have an inclusive representative democracy and to have laws that are embraced and supported by all people governed by that democracy, you need to have everyone in the room, which means you have to have lawyers from every ilk, color, division, religion and gender,’ says Carlos Brown, senior vice president, general counsel and chief compliance officer at Dominion Energy.

‘Those that have access, knowledge of, and facility with the law tend to have and tend to be able to create opportunities that benefit themselves and the people they represent. To the degree that African Americans uniquely, but also Asian and Latin Americans and other ethnic minorities, have faced discrimination with regard to access to law school, or access to the bar or access to certain law firms and certain experiences, they have a different and broader perspective on how to approach legal challenges when you are in a disadvantaged position,’ he explains.

‘Being in the room where it happens – and typically one of the hall passes to get to that room is having access to the law – makes a difference. And for your community and your people and people who may look and speak and have other similarities to you, to the degree that’s been dominated by one societal cleavage explains why, in many cases, laws have been somewhat insensitive to others.’

The arguments for diversity, equity and inclusion (DE&I) are well known, and their impact on organizational performance has been proven. But it is useful to reiterate them, because the first step in any plan for tackling these issues is to know why you want it.

Step one: understand why

‘Let’s be honest, you’re going to have to ask your people to make changes to their behavior, which they may not like. You’re going to have to ask your leadership to start thinking differently. You have to understand why you want to do this – is it because it aligns with company values, is it because your GC really cares about DE&I, is it just because it’s the right thing to do, or is it the business case?’ says Leila Hock, chief growth officer at Diversity Lab, an incubator for ideas to further diversity and inclusion in the legal profession.

‘Your why will drive how you message your work and what that work is, so it’s important to get it right.’

Many organizations were spurred into greater action on race and ethnicity inclusion by the murder of George Floyd. As a wave of protests spread across the US and beyond, conversations about race took on a new urgency. It became clear that passive opposition to racism was no longer enough – it was time for action. As with many individuals, organizations looked deeper inside than they had before, and found that meaningful change required better understanding of the nuances of systemic prejudice and the complex interplay of privilege and bias, both conscious and unconscious.

Above all else, business has had to become brave enough to listen.

‘Companies are asking questions. People are asking questions. Companies are having candid, open conversations that I could not have imagined five years ago,’ says Kimberly Banks MacKay, general counsel and corporate secretary of West Pharmaceutical Services.

As corporate advisers, says Banks MacKay, in-house counsel are well placed to facilitate conversations and function as agents of change. But, especially for leaders who are also diverse, there can be a cost.

‘Even though it is critical, and even though our role as legal advisors in regard to these issues gives us unique insight, , it can be uncomfortable. I will say, candidly, as a person of color, you are oftentimes one of a few in the room, and it is not always comfortable to have the spotlight on you in that way. But I also feel a sense of responsibility. Sometimes we are the only people in the room to be able to speak to these issues in a very personal way to both educate and influence. If it were comfortable, there would be no growth’

The legal profession is on its own journey towards greater and more inclusive representation of racial and ethnic minority lawyers, both within law firms and corporate legal departments. At the front line of change is the Leadership Council on Legal Diversity (LCLD), an organization of over 400 CLOs and managing partners working towards DE&I in the legal profession. President Robert Grey describes the training the LCLD provides to the next generation of racial and ethnic minority lawyers to foster their success. However, he says, individual preparation is only half of the story. Culture is the other – institutionalizing practices to make them systemic and sustainable.

Don’t change the numbers, change the culture

At the highest levels, the conversation about DE&I might be about strategies, goals, metrics and KPIs. But the workplace, with all its microaggressions, is experienced on a highly personal level – and remembering that in all interactions is the essence of culture.

‘Twenty years ago, if you were being invited to a law firm social event, the invitation might say “Please bring your spouse to this event”’, says Rick Sinkfield, chief legal, ethics and compliance officer at Laureate Education, Inc. ‘I don’t think people meant anything offensive or exclusionary by it, but if you’re in the LGBTQ community, you might be like, well, I don’t have a spouse. I have a partner. And then you wonder, is my partner welcome, or do you have to be heterosexual to attend this event?’

‘Unless that person feels empowered to go to the welcome committee and say, “Hey, maybe we should change that invitation”, then by accident you have sent out a signal. You want these people to stay and be productive and lead your firm, but you’ve kind of given them the cold shoulder,’ he explains.

‘That’s just the little stuff. What about the big stuff? Who gets assignments, who gets to work for which partners, who gets to go on the big trips, who gets to be sent to the Brussels office to learn EU law? It all builds on each other. At every institutional moment, someone has to ask the question: is the way we’re doing things – intentionally or unintentionally – sending a signal that some group isn’t welcome or isn’t on par with the others.’

It comes back to the idea of listening, says Sinkfield: ‘If there are people who are telling you that they don’t feel welcome, you need to listen to them. I think that’s the key to the workplace. Listen to people and try to make the workplace a place where everybody can excel on their merit, and performance.’

Step two: get the right leadership in place

Fundamentally, any good strategy for building inclusion for underrepresented racial and ethnic groups cannot be developed without the input of those groups. Equally, for any kind of cultural change to take root, having the right leadership in place is also essential – and the higher up the executive ladder the better. But whoever the ultimate sponsor is, they must make that commitment personal.

‘You can say that you’re in it to win it, that you have a desire to see a more equitable environment. But what people are motivated by is your conduct – what are you bringing to the table as a leader? Because if you bring your full self to this initiative, with your own commitment, then that will encourage others to do the same,’ says Robert Grey.

Myers has seen the value of this at Denny’s, where the CEO is a diversity champion: ‘As he’s tried to make sure that these issues are addressed throughout the organization, he is very vocal, very upfront, very engaged in all of our employee resource groups. He has empowered his executive team to do what they think is necessary to not only show the new employees and the old employees what our diversity and inclusion engagement is about, but also being totally transparent about the company, its numbers, its activities, and it’s commitment.’

The general counsel is also extremely well placed to spearhead such efforts, as an organizational leader with the ability to drive change, a business adviser with a responsibility to ensure that corporate values, frameworks and actions match, and as a client with the power to drive those values across the supply chain and extend influence beyond the borders of the company.

As a member of the board of directors of the Leadership Council on Legal Diversity, Carlos M. Brown has created a pledge, setting out his DE&I leadership goals at a granular level. They include having a DE&I committee specifically for the law department that provides oversight and engagement of the team’s efforts, while also requiring leaders within his department to submit their own personal diversity plans in which they identify between three and five specific actions that they will own.

Skin in the game

Personal commitment can manifest in many ways, from performance management to personal choices, and leaders who are diverse themselves have the opportunity to be the crest of the waterfall in ways that feel most personally meaningful.

Says Ashley Page, chief compliance officer at Endeavour and former general counsel at Learfield: ‘I have got to a point in my career where I feel strongly that it is my responsibility to bring my authentic self to work every day and set that example for others. I wear my hair in a natural style – I noticed when I joined the team at Learfield IMG College that other Black women in the office started feeling more comfortable wearing their hair in those styles.  It is not just about being comfortable in my own skin, it is about a responsibility that I have to lead by example in bringing my authentic self to work and hit difficult conversations head on. Just by having those discussions I set the tone and the example for others around me.’

For all leaders spearheading DE&I efforts, making a personal commitment might involve risk, cautions Robert Grey – but that is part of the personal and organizational stretch required.

‘You’re going to have to risk some personal capital in this effort to show people you’re in it for the long haul. And if you don’t risk anything, nobody else will either,’ he says.

That risk could be reputational, loss of following, loss of face if others are critical of your strategy. But such risk, he says, can be minimized by another of his pillars for a successful strategy – transparency. In this context, transparency could be the support in numbers of others of a similar stature in other organizations being open about their successes, or their attempts.

Step three: be transparent

Myers agrees about the impact that transparency can have, and she has seen it on the ground at Denny’s.

‘You have to have transparency into pay and what you’re doing around your employees. So it’s terribly important, on an annual basis, to do a pay equity study. We do that at Denny’s and have been doing it for a number of years. We report that study to the board and to the executive officers of the company,’ she explains.

‘I think it’s also incredibly important, and it’s kind of new, to have a human capital report. We will be publishing our first in January, and it’s going to have full transparency into our organization, what our numbers look like and what we’re doing to make sure that we either maintain the inclusive environment that we have or that we chase after those areas where we think we have an opportunity.’

For Grey, transparency includes the process of formalizing the leader’s personal commitment by codifying goals in a written form (as with the pledges created by Brown along with roughly half of LCLD members) and displaying those goals to create a sense of accountability.

But when creating a culture of inclusion in in-house legal teams, it might not be obvious where to start. Why? Because many in-house teams suffer from of a lack of data.

Step four: gather data

‘Whereas law firms routinely submit their numbers with regards to the make-up of their teams and leadership, in-house legal departments don’t. There are some organizations that collect that information but, on a large scale, there’s no great way to understand specific gaps in the in-house legal community as a whole,’ says Hock at Diversity Lab.

‘Legal departments are… often made up of and easily attract white women. But when we start to break it down into underrepresented racial and ethnic groups, LGBT+ lawyers and lawyers with disabilities, they have more challenges – and there are certainly challenges around underrepresented racial and ethnic groups,’ she explains.

Hock advises legal departments to find a way to measure where the biggest gaps are, while Valerie Portillo, Diversity Lab’s legal department and law firm integration strategist, also emphazises the importance of simply asking questions, unpicking facts from assumptions:

‘When you start asking questions, you start to uncover things that you were not necessarily aware of. We had a lot of conversations with legal departments that have started asking these questions and they said, “Oh, this partner who we had seen as falling into the faithful lieutenant role is actually the person that is our go-to, so we want to shift credit to that particular person”,’ she explains.

Hock and Portillo stress that the strategic goal should be to establish inclusive structures and practices, which will then attract diverse talent, rather than bluntly targeting underrepresented groups.

‘What we’ve seen in the legal industry is very slow movement of actual increased underrepresented racial and ethnic groups, because often people want to hire and then they don’t change their practices, they don’t make people feel like they belong and then they just go elsewhere,’ says Hock.

‘Look at your current population, make sure you’re not losing your underrepresented lawyers at a higher rate than your overrepresented lawyers. So start with the data and the metrics and go to where that takes you.’

Step five: identify areas of impact

The leader must identify areas of potential impact where change can and will occur, says Grey in another of his pillars for DE&I strategic success. Whatever those areas are, they must be explicitly said and seen.

‘We can’t account for it unless we know what it is, and we can see it, and so we think the idea of measuring ourselves against those pledges and those initiatives we’ve chosen, is also an important tool in the growth and the sustainability of these initiatives.’

We return to the importance of transparency, which Grey sees as an active concept, involving discussion, feedback and iteration.

‘To make [DE&I] scalable, which is a goal of ours, is this idea of socializing these ideas, of crowdsourcing the better practices. And so that’s the stage we’re in now. Now that we are getting people to do these pledges, let’s stay one step ahead of the curve by saying to ourselves: how can we socialize these ideas, how can we elevate the discussion to not what we intend to do but what we are actually doing? Putting those practices in front of people and opening them up for discussion, being critical of them, both internally and externally, will allow us to create the improvement that needs to take place,’ he explains.

Step six: measurement

Grey’s final pillar is measurement, and he is supportive of KPIs for DE&I. But he also is an advocate for peer review in this space.

‘We have operated in silos for a long time. So you ask a major company, “How are you doing?” And they say, “Well, I think I’m doing fine.” “How do you know?” “We’ve got more diversity than we had last year.” Ok, that’s progress,’ he says. But measurement should not stop there.

‘Are you doing the most you can do? Are you operating at the highest level you can? Are you creating a sustainable and systemic approach to the problem you’re trying to solve? What’s the review mechanism for your work? Is it your standard, or is there an industry standard? Is there a peer standard? What are we working with? I think all that has yet to come because we’ve operated in silos so long that we’ve never had a measurement outside of those silos to determine if my initiative is operating at peak efficiency.’

Grey’s ‘socialization’ of the review process seeks to transform it from a purely top-down process to something akin to an agile one, where peer discussions offer feedback and a chance for iteration.

‘I think that this idea of bringing the initiatives to a larger discussion group allows us to be critical, helpful but, more importantly, to not have everybody trying to invent the same wheel over and over and over again,’ he says.

Building a culture of inclusion is not a quick process because organizations need to challenge themselves. That could take years. But it doesn’t mean that organizations should see that culture change in a different way to other change management processes – like technology transformation, says Grey.

‘“We’re going to be the best at technology than any other company”, and when you decide you want to do that, guess what? You just unleash all of the talent and authority and power, and you drive it. You start saying “I want know what we’re doing about this.” If you hold people to that same standard on diversity, then we will drive a more productive effort at making it happen.’

He adds: ‘Part of the storyline is if you apply the principles of success to diversity that you apply to other areas that you consider a challenge, you will be successful, because we know our own track record at doing these things.’

We’ve seen six steps towards a framework for inclusion, comprising understanding, leadership, transparency, data gathering, targeted potential impact areas, and measurement. Next comes the task of populating that framework with the meat of a DE&I strategy – the initiatives.

A good initiative should embed structure into processes and talent systems. In an echo of Robert Grey’s pillars for a DE&I strategy, Leila Hock at Diversity Lab believes that a good initiative should include structure, accountability, transparency and collaboration.

Cultural competence

Improving D&I through recruitment requires some degree of cultural competence, says Grey: ‘You can’t just say, “I want people from the Middle East” if you don’t know anything about people from the Middle East in your organization. Or, “I love African Americans, I’d like to have more of them”. If you don’t know anything about their plight and about the obstacles they’ve had to deal with, then how are you in your organization going to develop those individuals in a meaningful way?’

First of all, it’s essential to go where talent is, and organizations can expand the target talent pool instantly by going to the right colleges and law schools and seeking out the best candidates. But exploding structural inequalities that impact the talent pipeline takes investment in potential talent before the point that they are ready to enter the workplace.

Mentoring can be effective, says Brown. He recalls his own time as a law student preparing for the LSAT exam, when he happened to bump into, the now Chief Justice S. Bernard Goodwyn – the only African American lawyer he knew – in the law library. Justice Goodwyn advised him of the availability of a grant to partially fund LSAT preparation classes, something he was entirely unaware of.

‘My score increased by 20 points between my initial practice test and the actual LSAT. That LSAT score allowed me to get into Harvard, UVA, Duke, Georgetown, and a number of other very prestigious law schools, and so made me a candidate for significant scholarships. But for the fact that the one black lawyer I knew, Bernard Goodwyn, saw me in the library that day, I never would have known of the material difference that that prep class would make in my career and life. I likely would not have prepared, likely would have underperformed, and likely would not be here talking to you today,’ says Brown.

The intersectionality of diversity is an important factor, with economic disenfranchisement and other factors often overlapping with racially and ethnically diverse candidates. Brown is vocal about the need for underrepresented racial and ethnic minority lawyers to receive support throughout the entire process of qualification, whether applying to law school, achieving at law school, navigating the world of recruitment, and then getting the market exposure and visibility to succeed in their careers. Otherwise, he says, the structural obstacles faced by would-be lawyers without prior experience or exposure to the law, can stymie even the brightest sparks. Internships and sponsorship for diverse student candidates can be effective.

When it comes to drafting job postings, it is important to not accidentally screen out diverse candidates by being needlessly narrow in the requirements – for example industry experience or length of service – and to focus instead on qualities, such as leadership, initiative, versatility, creativity and energy. Vacant roles should be advertised outside the traditional channels, in places that encourage a diverse slate, such as colleges with a historical representation of the groups you are looking for, affinity group bar associations, and websites of relevant organizations.

When the résumés come in, it’s important that the selection process and interview panel are staffed by a hiring team and interview panel reflecting different races and ethnicities, as well as genders, and even different parts of the business. The decision cannot be influenced by one perspective if all candidates are to have a fair chance.

Inevitably, DE&I is a chicken and egg story – if you build an inclusive culture, diverse people will come, but is it possible to create – and maintain – that truly inclusive culture without the input of diverse people in the first place?

This process is a journey along a continuum – and it’s crucial to meet people where they are, which will depend on where they’ve come from along that journey, says Grey.

Perhaps key to beginning that journey of inclusion is to confront unconscious biases and turn a room of people with unacknowledged prejudices into a room of allies. But to uncover those biases, you need training. Lots of it, potentially.

‘Training and exploration of unconscious biases, not just in a two-hour or three-hour seminar, but in an ongoing way that will have stickiness within an organization is key, because that’s where you have to start. You have to change the mindset. Once you change the mindset or open up the mindset, then the real work can begin,’ says Myers.

Mentoring, sponsorship and allyship

Mentoring and sponsorship are important tools in the inclusion kit, to help racial and ethnic minority associates build on their strengths, navigate the cultural landscape of the company, and benefit from the various experiences of those who have succeeded.

‘That does not necessarily mean a mentor of the same race or ethnicity. I can say from my own career that some of my best mentors were white men, because they were very interested in understanding my challenges – and I was not shy in telling them about the obstacles that I was facing as I was practicing law,’ says Harris.

But just having a mentoring or sponsorship initiative in place does not mean that beneficiaries are effectively prepared for success if that initiative is not properly devised and implemented. This point speaks to the importance of Diversity Lab’s mantra of structure, accountability, transparency and collaboration.

‘An underdeveloped mentor or sponsorship program just says, “Valerie, meet your new mentor, Leila. Develop a relationship.” And that’s where actually a lot of mentoring programs stop,’ says Hock.

‘There’s no structure to how the relationship should go, there’s no accountability to make sure that the mentor and/or the sponsor actually checks in with the protégé or mentee, there’s no transparency in really understanding how that relationship is going, and there’s no collaboration amongst the mentors or sponsors or protégés.’

Phyllis Harris adds that mentorship by itself is not enough – there must also be structures in place to make sure that diverse colleagues are getting an equitable bite of the pie.

‘The organization needs to ensure that these individuals are getting the assignments. That allows for visibility. It’s not enough to invite people to the party, you’ve got to go across the room and ask them to dance. You ask them to dance in the legal profession when you ensure that people are getting good assignments and they are getting good, constructive feedback. The worst thing you can do is bring people into the organization and set them up to fail by not sharing with them how they can improve, as well as sharing with others when they do really good work,’ she says.

Some cross-over between mentorship, sponsorship and allyship may occur, but fundamental is advocacy, which points back to the strategic pillars of personal commitment and putting skin in the game when working to increase inclusion of racial and ethnic minority lawyers in-house.

Hock describes ‘Ally Action Pledge’ initiative, which challenges law firm partners (though she stresses it could work for senior corporate counsel) to sign a pledge, committing, for example, to advocating on behalf of a lawyer from an underrepresented group, introducing them to high profile people, taking an active role in their work assignments, and making sure they get the exposure, visibility and experience that they need.

‘It’s important to make sure we involve underrepresented racial and ethnic lawyers in these initiatives and strategies and initiatives, but they can’t be doing the work. We have to get allies involved,’ she says.

‘An inclusive workplace is better for everyone, it’s not about stealing their role or opportunities, it really is about inclusion for everyone.’

Succession planning

At Dominion Energy, Carlos M. Brown has worked to ensure that diverse counsel don’t hit a glass ceiling within his in-house team by embedding inclusion into departmental succession planning. All succession plans, including those of his deputies and managing counsel, must be 50% diverse before he signs off on them.

‘If that means that you have to identify a candidate who you might say is not ready now, then that’s fine, but by putting them on that list you are committing as a leader reporting to me that you are going to undertake the steps you need to get that person ready to be a candidate to compete for your job. This takes away the excuse that there is a pipeline issue. Because no women or people of color  or people of color are ready,’ says Brown.

‘That circumstance is true for everyone until someone invests in them to get them ready. For years the excuse has been used that we don’t have any “ready-now” candidates. But the candidates that are ready now are ones who someone identified three, five, seven, ten years ago and said “Hey, we’re going to line this person up with the experiences and the exposure so that they can one day be a deputy GC or a GC in this company.” That same type of deliberate intentionality should happen for women and underrepresented candidates, and so that’s something that we’ve mandated.’

Initiatives: the supply chain

A similar long-term intentionality can be applied to peer pressure along the supply chain – an outlet where general counsel keen to promote DE&I in the wider legal profession have much agency. Corporate counsel can be more specific than demanding racial and ethnic minority lawyers on their work – they can demand that they be supported, developed and well enough exposed to become the experts that clients demand.

Says Grey: ‘I don’t want you to put a minority lawyer or an ethnic minority lawyer on a case because they are ethnic minority. That doesn’t help me. What I want to know is who’s in that practice area whose job it is to do that kind of work and are they doing my work? That is turning the aperture to be more focused.’

Diversity Lab’s Hock acknowledges the difficulty for in-house teams to establish these new working relationships with longstanding outside counsel. In a bid to overcome this, Diversity Lab has an initiative called the ‘Diversity Dividends Collective’, which tracks demographic data of outside counsel teams, revealing to in-house teams who is receiving financial or expansion credit for leading their matters. The organization hopes that this tool will help legal teams work in partnership with their law firms to achieve better results, rather than point the finger.

‘Instead of saying, “You need to do better”, it’s saying “Look, these are your gaps, we understand them, how can we help you?”’, says Hock. ‘It’s recognizing that law firms play a role, and it is not enough to just incentivize them or say “Give us your data and we’re going to make decisions based on that”. There needs to be a consistent dialogue between legal teams and their law firms.’.

‘We’ll only see true progress as a legal industry if we see ourselves as just that, a legal profession, not us and them, a legal profession working together hopefully to change the entire profession and the systems of the entire profession.’

Dominion Energy has its own tracking system for outside counsel, which encourages billable credit to be given to diverse lawyers by tying part of the legal department’s bonus program to a point system predicated on number of matters given to, or number of hours spent by, diverse outside lawyers.

‘We’ve been doing this now for about four or five years and we’ve grown our diverse spend. About 20% of our legal spend now can be credited to minority, veteran-owned, women-owned firms, or diverse lawyers at majority firms,’ says Brown.

Putting the pieces together

Better collaboration is both the reason for diversity, equity and inclusion, and the solution at the heart of strategies to achieve it. It means reaching out, accessing the knowhow already out there, gathering best practice, and working to move the conversation on, and on again.

‘Our suggestion is to be bold, and you can’t be bold unless you know that there’s something better than what you’re doing out there,’ says Grey.

‘Is it uncomfortable? I think it’s a little uncomfortable, because nobody’s been doing it in the past. So, we’ve got to get to a different level of comfortable about how we work with this area. I think we come from not being comfortable at all, to now we think we’re comfortable because the status quo in a sense affords us some protection against doing more. And I think we’ve got to guard against that and say the status quo is not good enough.’

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”

In 1776, the men who drafted these words in The United States Declaration of Independence did not believe them to be true for Black America. It would be almost 90 years and a civil war later, before African Americans would be granted basic human rights.

Fast forward to 2022 and the fight against racial inequality and systemic racism continues. In response, corporate America reviewed their own striking race gap. Organisations promised to look internally and examine their role in perpetuating inequities in hiring, pay, promotion and fostering toxic work cultures.

Two years since the pandemic began diversity advocates remain optimistic, even though the data paints a discouraging picture of progress.

The land of the free

Racial diversity among Fortune 1000 general counsel declined over the past year according to the  Minority Corporate Counsel Association’s (MCCA’s) Fortune 1000 GC Survey. The annual survey, which tracks the representation of historically underrepresented racial and ethnic general counsel, found that Black General Counsel representation fell by 1.7%.

The biggest dip came from general counsel seats held by Black men, with a net loss of three (6%), while Black women remained constant, holding the same share of GC spots as in 2020. Jean Lee, president & chief executive officer at the MCCA, says the survey shows a disappointing stasis in the representation of Black and minority corporate counsel.

‘The lost opportunities for change, coupled with the decline in representation among Black male lawyers are the biggest surprises of 2021. Despite George Floyd and the talk of America waking up to become enlightened on issues of race; it clearly did not happen as much as we would have preferred. I did not think everything was going to change, but there was such an outcry from the corporate community for progress that we would have remained flat in terms of overall data and did not expect a decline. What we can see is that companies who pledged have not followed suit yet or have been slow to move forward.’

Amid the uncertainty of the pandemic, one of the reasons for the drop of diversity among GC roles at Fortune 1000 companies can be attributed to a stagnation of the job market. In 2020, job movement and staff turnover slowed to historic lows. This much is clear from the MCCA survey, with only 139 GC roles being appointed in 2020, compared to 216 new appointments a year earlier.

Ashley Page, SVP, chief compliance officer at Endeavor, believes this may in part account for short-term stalls in equity led by the hiring market. ‘When you focus on Fortune 1000 companies there has not always been much movement, but we are seeing even less movement during a pandemic. I believe this is because we are going through scary times and the last two years have not been a great moment to jump jobs.’

‘For minorities, who often face greater challenges stepping into GC roles, this means less access to those coveted positions. By definition, if there are fewer opportunities overall, there are even fewer opportunities for minorities in particular.’

However, adds Lee, there has been positive news among the dismaying numbers: ‘One of the more positive factors as to why this happened is that a lot of in-house counsel are moving to less traditional Fortune 1000 companies as they see more opportunities there. Another reason is that there are a lot of people who have retired, maybe unexpectedly, during the pandemic. These unexpected departures may have shown that companies have not done a great job in developing a pipeline for Black leaders to move up into the general counsel role.’

Closing the gap

Historically progress towards diversity, equity and inclusion in the legal profession has been very slow over the past decade. According to The American Bar Association’s (ABA)National Population Survey, diverse lawyers made up 11.7% of the legal industry in 2011. Ten years later, they represented 14.6% of the profession.

African American representation has been particularly low relative to US demographics: in 2021, Black lawyers made up 4.7% of the legal profession  but 13.4% of the US population.

This gap, says Carlos Brown, senior vice president and general counsel at Dominion Energy, highlights the ‘myth of meritocracy’. Invisible gates such as the college or law school a young lawyer attended have a far bigger impact on their career than is commonly acknowledged.

‘The truth is that these steps have been created and do not reflect how true society works. Those who have benefited from financial and academic resources from an early age get an advantage and essentially the gap between those who have and those who have not widens.’

‘I am the first person in my family to go to law school and I can see there are real structural advantages that exist between people who have been exposed to the law before than those who are starting new in the profession. The barrier to entry is getting harder.’

It was no surprise then that the ABA’s ‘Profile of the Legal Profession 2021’ showed the opposite disproportionate population trend for white men and women in law. In 2021, 85% of all lawyers were documented as being non-Hispanic White in the legal industry. By comparison, 60% of the US population were documented as non-Hispanic White.

The accessibility to opportunity has a trickledown effect for racially diverse and minority lawyers. Ashley Page explains, ‘A lot of the most coveted in-house jobs were not accessible or available if you did not have experience at a law firm of a certain prestige. These things mean that jobs are not necessarily equally accessible to members of a certain minority group because some jobs tend to hire based on where you went to law school.’

‘Opportunities to go to the most prestigious law schools are not necessarily available on an equitable basis to members of all minority groups for a range of reasons. This may include challenges with standardised testing, financial constraints and biases.’

Details in the data

Lawyers of colour are less likely to work at law firms, according to the ABA’s ‘Profile on The Legal Profession 2021’, instead they are more likely to work for government agencies or in-house. White lawyers were 40% more likely to be working in law firms compared to 24% of Black Lawyers. In contrast, Black lawyers were 15% more likely to be found working as in-house counsel and 28% more probable to be working at government agencies.

Even though representation of minority lawyers continues to lack at law firms, it is interesting to note a 2020 Report on ‘Diversity in US Law Firms’ from the National Association of Law Placement which found for the first time ever, more than 10% of law firm partners across the United States were lawyers of color.

‘It is really positive to see that Black lawyers have the highest racial representation at corporations compared to other historically under-represented racial and ethnic groups, especially when looking at general counsel positions, but there is room for law firms to do more,’ explains Lee.

In addition, when it comes to the industry in which Black lawyers chose to work, financial services and tech ranked the lowest. According to the MCCA, the Fortune 1000 can be broken down into eight sub-groups: technology, business services, consumer services, health care, CEM (Chemical, Energy and Materials), industrial services and transportation. The survey found that African American GCs in Fortune 1000 companies made up 5% in the tech industry and 3% in business services.

The reason behind this may be based upon the cultures prevalent in those industries. ‘Financial services are traditionally white male dominated industries. There is an old boys’ network that is very hard to penetrate. That is why in the United States we have a Congressional Black Caucus for the tech and finance industry that specifically looks into diversity.’

Part of closing the racial gap, means acknowledging existing inequities and working towards bridging that hole by having uncomfortable conversations. A positive trend to rise since the pandemic is that older attorneys are finding it easier to have difficult conversations about racial justice issues according to the ABA’s ‘Practice Forward Survey’,

It was recoded from the 4200 lawyers surveyed, 53% were having talks about racial injustice issues with their colleagues more often than they did a year earlier. A third of those lawyers (34%) said the racial injustice discussions were easier than one year ago. Whereas only 10% of respondents said those conversations were harder.

Pandemic mothers

Women, and especially women of colour have been disproportionately impacted by the pandemic. Data released from the United States Census Bureau revealed that almost 3.5 million mothers left the work force in 2020. This large exodus was caused in part by child care and school closures.

The pandemic, says Lee, has been particularly damaging for women of colour. ‘When I connected with women general counsel, it is evident that women have taken on the primary care responsibilities of parenting during this pandemic. Many lawyers of colour, whether Hispanic/Latina, Asian or Black, experience multigenerational family challenges. They are the ones who have to step up and leave demanding jobs to take on home responsibilities especially in the first year of the pandemic where external support systems were not available.’

Between October and November 2021, the US Bureau of Labor statistics reported the labor force participation for Black women dropped drastically by 60%.

These numbers are not a surprise says Gail Myers, chief legal officer, chief people officer & secretary at Denny’s. ‘All women face gender issues when entering the workforce in a legal profession. It is true of working at a firm as it is working in a corporate environment. Unless there is a purposeful move on the part of executives and their boards to make change these numbers will remain the same.’

However, the pandemic and its challenges have brought one major advantage to women. The rise of remote working has made more jobs available to minority candidates explains Ashly Page, who has been working at global sports, media and entertainment company Endeavour remotely since the pandemic began.

‘My personal experience has been that the remote work flexibility that the pandemic kind of forced on the workplace has personally benefited me. I think it has made more jobs available to more minority candidates that were not previously there.’

‘So now because of the pandemic attitudes towards remote work and teleworking have made it possible for minority employees to consider jobs that are based in locations that they would not otherwise have previously thought about,’ says Page.

Women in the pandemic, whether they were laid off or furloughed, have had to be pro-active in how they have dealt with challenges. In some cases women have become more cautious about the jobs they accept and the companies they choose to work for.

‘People are becoming a lot more critical of companies and how equitable and inclusive are their polices. Women are not afraid to walk away from opportunities where in the past they would have killed to have,’ explains Page.

We are all in this together

Although there has been significant strides towards racial equality in the legal profession, one thing remains clear, more still needs to be done. Capitalising on the DE&I movement and pushing for real change is so important.

‘Being a minority is trendy right now, like we are in Vogue. So there are definitely a lot of company initiatives out there that have felt more like they are about publicity than about the work being done,’ says Page.

Kudos to the companies that are really trying to do the work of understanding the things they need to change to become more diverse, equitable and inclusive. That said, there are companies that have seized the moment to make splashy media statements and pay lip service.’

One of the best ways to avoid companies from capitalising on this moment is to hold them accountable. That is why benchmarking and collecting data on racial demographics are so important explains MCCA’s Lee.

‘There is no way for us to say there is no diversity if we do not benchmark the data. It also helps us determine which areas in the industry we need to improve. The most important reason to gather the data is so that we have concrete numbers to support an assertion. When people of colour and other under-represented groups share their experiences, it is always good to have the data to support what they are saying. That way it is about facts and not only about how they feel.’

Despite the turbulent two years, and slow evidence of DE&I growth in corporate America the fight towards racial equality continues to stand strong summaries Lee: ‘It is important that we continue to hold up a mirror to society and to corporate America and say, we are not going to let you forget the commitment you made for black and other historically under-represented racial and ethical people in this country.’

‘We are not going to let you forget that black lives matter, and you need to show us how it matters to you.’