The role of the in-house lawyer
One thing which interested us in this research is how much the lawyer in a company is uniquely placed to be a driving force for diversity and inclusion. A number of interviewees, who are highly visible advocates for diversity and inclusion, do feel that lawyers are particularly well-placed to drive this agenda forward. On a conceptual level this is partly because, ‘it is fundamental to the DNA of a lawyer’, according to Tim Hailes of J.P. Morgan. ‘There is just an inherent dislike of injustice, discrimination and unfairness that speaks very powerfully to equality of opportunity and fair treatment of all people.’
Kristin McFetridge at BT echoes this, bringing the perspective of the importance of lawyers in realising change in the US in regards to civil rights.‘I think back to the US case [Brown v Board of Education, concerning segregation in education] where it was decided that ‘separate but equal’ was no longer binding law. The judiciary really needed to bring about change. Lawyers need to be critical thinkers about what is right and fair and just, and so personally I think we do need to set a standard.’
The role of the lawyer
Now more than ever before, partners have a responsibility to actively support diversity and to ensure they are inclusive leaders.
Partners must be aware that junior colleagues look to them as role models, mentors and sponsors. Support of diversity and inclusion goes beyond joining employee networks or attending diversity events, but it stretches into everyday life; adapting to work with an increasingly diverse workforce, thinking about how you allocate work and to whom, finding ways to include those who do not speak up in meetings and calling out or challenging behavior which is not inclusive.
In practical terms the in-house lawyer often has a good oversight of the entirety of the company and can bring the perspective of what is legal and ethical to bear. The in-house legal function can also assist proactively with training initiatives by situating this very firmly in the context of inclusivity not only being desirable but that it is illegal to discriminate. As Jorge Roche at PageGroup describes: ‘We have successfully delivered a number of legal workshops to the business on D&I, equal opportunities training and actively support our different networks… my team supports many different regions where policy and legislation regarding equal opportunities differ. We have helped the business understand policy context and to develop the attitudes and beliefs that will allow them to see the value of working with people who are different to themselves.’
Sandie Okoro at HSBC Asset Management describes the lawyer’s ability to put theory into practice: ‘Lawyers have a skillset of seeing what’s not there; we can see the gaps and draw the necessary threads together. In a group situation, we may be more attuned to unconscious bias because we are simply used to looking for the gaps. You can ask lawyers those very simple questions about how to embed something and take it from the theory to the practice. We’re good at that because that’s our everyday job − we can help organisations get to a better place.’
One of the main ways in which in-house lawyers are potentially effecting change via their roles is in their capacity as purchasers of legal services. Our interviewees point to the fact that this imperative is currently less developed in the UK than it is in the US but that, nonetheless, it remains a key way in which clients can force change and engagement whether that is explicit or implicit. It’s a tactic that some are embracing. As Funke Abimbola told us: ‘a significant proportion [of law firms] won’t [change] unless it hits them in the pocket. On one level, we should set aside the business case and things that the McKinsey report have found and focus on the fact that this is the right thing to do, bringing a broader mix of talent. Clients are more diverse anyway, and you could be missing out on the top talent.’
This view was echoed by respondents to our survey, of which 61% felt fielding a diverse team was important for legal suppliers.
Avoiding box-ticking
Authenticity is a term that came up again and again during our interviews and is seen as being crucial to the success of diversity and inclusion in companies. This cuts two ways, in regards to how seriously organisations take D&I and the resources of those who work for them.
A common theme in our research was that diverse candidates also need to be the best candidates for the job, and prioritising diverse access over quality will ultimately move the case for diversity and inclusion backwards. As Raphael Mokades of Rare Recruitment comments: ‘People have to get in on their own merit but if the system to hire them is broken then they won’t get in at all.’ Tim Hailes at J.P. Morgan expands on this, saying professional credibility and achievement comes first. ‘That then makes the diversity conversation resonate more effectively and more strategically within an organisation.’
Avoiding box-ticking
It is critical that inclusion and diversity initiatives are not seen as a ‘box-ticking’ exercise. Perhaps the best way to avoid this is to ensure that diversity initiatives are carefully mapped out, have clear objectives and tangible results.
Baker & McKenzie were one of the first employers in any industry to adopt Rare’s contextual recruitment system in 2015. The system enables candidates to share an additional set of data, putting their achievements and academic performance into socio-economic context. Far from being a box-ticking exercise, this intervention has prompted very real change – both in our hiring process and in who we have hired.
Our intention in using the system was to identify stand-out candidates who in previous rounds may not have stood out on paper. Each member of our interview panel attended Unconscious Bias training, delivered by Rare, and we adopted school blind interviewing to alleviate any risk of bias during our recruitment process. At the end of our first hiring round, 10% of those hired would not have been selected for interview in previous rounds.
Getting in is only part of the process; a variety of research suggests that unless minorities progress then there is a lack of engagement and retention, as Lesley Wan of Lloyds remarks: ‘If diverse colleagues are not making it through the ranks, then business leaders should reflect on why this is happening and provide training to upskill those colleagues so they can proceed on an equal footing.’
This is really where diversity becomes inclusion. The variety of initiatives we consider in this report become meaningless if diverse candidates enter through the front door and exit through the back.
An implicit and, in some cases, explicit finding was that unless there is true ownership and engagement from leadership, then it’s hard to make diversity and inclusion really become a cultural imperative and part of the company’s DNA. As Patrick Rowe of Accenture summarises it:
‘Demonstrate and promote the right things, because diversity isn’t soft and fluffy, or an adjunct to HR, but it is an essential business priority. Someone very senior has to own it. We have someone who is responsible for it in the executive committee, not in HR, but a senior business leader, in addition to her day job, but then all executive members are accountable for tracking and measuring “what are you doing differently, how are you making a step change?”’
Where next?
In our quantitative survey we asked what in-house lawyers in the UK thought was the future challenge for diversity and inclusion in their organisations, and the responses broke down thus:
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- Gender – 22%
- Social Mobility – 17%
- Ethnicity – 15%
- Mental Illness – 15%
- Disability – 14%
- LGBTQA – 8%
- Age – 2%
- All will equally continue to be a challenge – 6%
- There isn’t a challenge/Not sure – 3%
Interestingly, despite a lot of focus on gender, the majority of our respondents still feel there is work that needs to be done.
The focus on social mobility also echoes a range of recent studies which show this is a pertinent issue for the legal industry in Britain. A 2015 study by The Sutton Trust and PRIME showed that about half of partners at top law firms were privately educated, compared with 7% of the population as a whole. Indeed, the research also confirmed that social mobility hasn’t improved substantially within the law since the 1980s.
The picture in-house according to our research seems a little rosier, with a number of our interviewees working on initiatives to bring socially disadvantaged young people into the industry, via work experience, mentoring and even in-house training contracts. But in many cases it’s a question of making sure these efforts are started early enough to ensure the pipeline is there and candidates do not self-censor. A further consideration is that the increasing cost of higher education is making it more and more challenging for candidates from a working class background to consider this pathway and face years of debt.
While we feature a number of examples of companies proactively looking at social mobility, disability (including mental health) is something that was on the radar of many of the companies we spoke to, but is an area where work and focus is still developing. National Grid has had an initiative running for some years and group GC Alison Kay is now looking at ways to extend this to legal:
‘Within National Grid, we have been bringing in people with learning disabilities as part of an initiative called EmployAbility. We have partnered with local schools and taken young people who would have possibly gone into unemployment when finishing school, and instead have given them the opportunity to intern with us. We have kept the vast majority on full-time and are looking at how we can use these interns most effectively. We can and should bring them into our legal team and I’m convinced they would add richness and diversity to our work. The transformation of these people is absolutely outstanding; they come to us very shy, very nervous, unable to make eye contact, and they “graduate” with a vastly improved skillset and a growing confidence.’
Where next?
In addition to a clear and sustained focus on gender, ethnicity, LGBT equality and social mobility, we are seeing a growing focus on mental resilience and a will to create environments where those suffering from mental health conditions feel able to speak, free from stigma.
Diversity of course encapsulates diverse thought and ways of working and generational diversity – pitching a tech-savvy generation alongside partners steeped in traditional ways of working will present challenges.
One thing is for sure – inclusion and diversity will continue to be a high priority for law firms, and their clients, for many years to come.
It’s a focus that is significant for a number of companies – PageGroup plans to roll out its Ability@Page initiative at the end of this year which will include a focus on mental health and wellbeing.
It’s a focus that is prescient – certainly according to our survey and also corroborated by external studies. An oft-cited 1990 study by John Hopkins University found that lawyers were nearly four times more likely to suffer from depression than the general population. The continuing focus on the issue of well being in the legal profession suggest this demographic may not have significantly changed.
Inclusion
Really the most significant challenge is inclusivity, and changing culture so that none of this matters.
Our work in this report suggests that making sure there is a truly viable pipeline of candidates, and that the barrier for entry is not stacked against them, is vital. Barriers to entry may include implicit bias, self-censorship by the candidates themselves, or hiring practices which fail adequately to judge potential to actually perform as a lawyer versus past academic performance.
We discuss both initiatives and in the final section of this report consider the practical building blocks which are needed to make these work. We also, via our interviews, consider the importance of viable authentic role models and true consistent championship of diversity at leadership level. Also fundamental is the retention and upward movement of diverse candidates into leadership positions.
What all of these things essentially speak to is a truly fundamental cultural shift. That then becomes the litmus test of an inclusive company. As diversity consultant Vernå Myers puts it:
‘Diversity is being asked to the party; inclusion is being asked to dance.’