“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.’
Jean Lee, President & Chief Executive Officer at Minority Corporate Counsel Association
‘Why would I enter the legal profession if there are not any people who look like me?’
This is the most common question students of colour have asked Jean Lee, president & chief executive officer at Minority Corporate Counsel Association (MCCA). Having spent 14 years as a litigator in New York City, Lee understands the importance of diversity in the legal field.
‘This is why representation is so important. Building a pipeline, mentoring and showing a path forward for young attorneys from under-represented backgrounds is vital. The whole profession benefits from having diverse perspectives and voices.’
For the past six years Lee has been leading the MCCA’s mission of advancing, hiring, retaining and promoting diverse layers in law departments and firms. Since 1997 the company has also been publishing, researching and providing professional development opportunities.
‘We started out as a traditional non-profit organisation focused on research and education. However over the last five years our operations have shifted to include strategic advisory services, toolkits and workshops. One of the focuses for the MCCA is the c-suite. We hope by having more diverse lawyers at the top there may be a trickle down effect,’ says Lee.
One of our most important research surveys that is conducted annually is the Fortune 1000 GC Survey. The MCCA collects data from leading corporate counsel with the aim of benchmarking and tracking the state of DE&I within leading corporations. This has been done since 1999 and what the data universally shows is that although DE&I within the legal profession has been improving, progress is slow.
‘Although we made some progress, the results of the survey this year were disappointing. There were a lot of grandiose statements from corporate America and so I thought we would have made bigger improvements,’ says Lee.
However, it is important not to lose faith as there are still many general counsel within the community who are working towards improving the profession. Lee explains, ‘We have some amazing leaders in the community that are holding themselves accountable and putting their metrics out there. They are providing updates to their commitments and they are the ones pushing the needle forward.’