There has been a fair amount of experimentation and implementation initiatives following former Sara Lee GC Rick Palmore’s call to action in 2004, which led to the formation of the Leadership Council on Legal Diversity (LCLD), made up of GCs in the Fortune 500 and managing partners of major law firms.
The whole focus is to increase the diversity of the talent pool for both inside and outside counsel. But the issue of diversity and inclusion within the law has been in a perpetual state of frustration for many years – you prefer to focus on carrying the gauntlet forward in order to remain productive, but it’s draining in how little progress we have made too.
A lack of progress can be cyclical, as it leads to the issue of people becoming cynical, if not downright defeated. But there seems to be more of a sense recently of people starting to realize they are competing for talent because they can’t get everything from one pool, which is leading to an influx of new ideas. These are not necessarily original ideas, maybe old wine in new bottles, as some initiatives have been happening in other industries. I was reading an article this morning about Latham & Watkins’ breast milk shipping program, where mothers who go back to work can travel and not worry about getting breast milk through customs. The accounting firms have been doing that for years, but it’s good that big law firms are catching up.
Now, I am not suggesting you boil the ocean, but diversity and inclusion is not just one issue and you cannot do just one thing; it is a multifaceted issue and you have got to be flexible and have enough variation in what you offer people. Some of what is needed is essentially a focus on what work means now and that there are real issues around caregivers here. It’s not only an issue for mothers going forward – caregiving for the elderly is becoming an issue; as the baby-boomers age.
I think what may start to produce change is a confluence of all of these threads, which will force different support structures and tax structures so that this can work. Some of it involves having to break the rules – at the end of the day, when I became a general counsel in a Fortune 100 company, I was one African American woman breaking through. There’s a sense that people want to attribute that to there being something special about me or those who make it. It relieves people of believing that there are others being left behind: if a woman happens to break through she’s superwoman, she’s special. That’s BS. What about all the other people who are the same that you can’t see because you are too busy saying she’s special.
I think this fundamentally comes from a need for the legal profession to start thinking differently about itself. Lawyers are one of the worst professions in regards to change.
It’s about needing to fish in more ponds and gain better access to people. It’s about finding those who are different to you and not believing you have to work 22 hours a day for ten years. In-house counsel can often get the same results as law firm lawyers and believe me, we’d rather you didn’t work 22 hours a day! There’s still often no real accounting for all the changes that are out there; law firms are still more or less doing the same thing, even when technology can allow you to do things so differently. The profession can’t bring itself to think holistically and in a futuristic way; change is seen as being forced on us and so is seen as something undesirable.
A key issue in regards to thinking differently and therefore hiring differently goes back to the mighty billable hour. I think this is one area in which accounting firms have really stolen a march over law firms in promoting the idea of team culture and project management much more as outcomes. In a law firm there is no team output, just individual output, and we need to break the model to see the possibilities. A problem is that people have obviously made billions on this model, but everything changes – it’s just a matter of when you come to the table. You can change or become irrelevant – pick which one you like better – but that’s an idea that this profession kicks and screams against.
If you do a team-based compensation model and if you have a team-based approach then, by definition, you can ebb and flow in regards to staffing. But at the end of the day it is the team – the collection of the whole not individuals – which performs. If you still see outside pitches from law firms where partners say ‘this is my team’, then the model they are using is one where individual people work for you, not a team.
The place we need to get to is to truly see that different working is not about not being a team player, but rather it is about finding a way to use everyone in the workplace in the best way without inspiring guilt. It’s about working more flexibly, more creatively, working remotely – who cares how.
We need this idea of being creative and flexible to be enshrined as normality, rather than treating the person as someone to whom you are doing a favor by allowing them to work for you.
A new battleground in the law is the pay equity laws which are coming online in a range of companies. Part of this is a sea change in mindset, as for many of us, talking about pay is still seen as uncouth. But if we don’t have the information we can’t benchmark and know where fundamental inequalities lie.
A lot of laws are coming on locally; the Equal Employment Opportunity Commission (EEOC) is making moves about transparency. The State of California already legislates for pay equity – interestingly now you don’t have to have the same job but similar jobs.
These new laws may have spillover effects in legal circles. Just recently we have Kerrie Campbell suing Chadbourne & Parke over how much she is paid relative to male partners. It’s unusual for a current partner to sue the partnership. But taking it to court is a hard thing as when you do that you automatically become the other.
That’s the problem – if you sue you have put a target on you for the rest of your life and no matter how open–minded people are, they will think ‘if you have sued your last employer will I be next?.
I think we should be looking at a mechanism for people to challenge compensation, such as mediation. I have challenged my pay internally at almost every place I have ever worked. But you need to know your stuff and be objective and unemotional. I was lucky that I had allies. Allies become critical the higher you go. Allies can do a lot of brokering for you. The ally I had was a very senior woman, who helped me get additional money as she went in and argued the increase. But we need, as a profession, to move to mechanisms that are not cobbled together.