The following column is by Janet Stanton, Partner, Adam Smith, Esq.

The reason we’ve never written about gender diversity before is that there was frankly not much to say; regurgitating dispiriting statistics without offering credible remedy is not what we do.  But things seem to be changing for the better with more effective remedies – and we hear more are in the works.

A little background on why gender diversity[1] matters beyond the worthy aspects of social tolerance and equal opportunity; there are hard-headed business reasons to support the tangible value of diversity.

From Corporate Land, there is ample evidence that a diverse workforce leads to increases in profitability.  And, on this dimension why would law firms be different?  Among many other reports, Delivering through diversity[2], a study published by McKinsey in January 2018 found a statistically significant relationship between a more diverse leadership team and better financial performance.  Companies in the top quartile of gender diversity were 21% more likely to achieve above-average levels of profitability.

There’s also a mounting body of support that diverse groups make better decisions.  Most recently from Steven Johnston, author of Farsighted: How We Make Decisions That Matter the Most (a truly great read), “Diverse groups tend to make more nuanced and original decisions than homogeneous ones do.  So, it’s not just that we want more women in Congress, it’s also that we want them there because the group will be collectively smarter.”[3]

How bad is it in Law Land?

In the most recent (2018) report from the National Association of Women Lawyers (NAWL)[4] the average percent of female equity partners in AmLaw 200 firms (that responded to the survey) has just inched up to 20% (up from 15% in 2006).  The report on their 11th annual survey speaks of a “relatively undisturbed pattern showing the absence of women in the upper echelon of law firm leadership.”

As we know, averages can be misleading; ALM reported the highest percent at a firm was 44.4% female equity partners and the lowest an embarrassing 5.7%.

This is despite actions virtually all law firms have taken to address gender diversity. In fact, as reported in McKinsey’s 2017 “Women in Law” report, Law Land is ahead of Corporate Land in implementing programs and policies to reduce bias in recruiting and promotions; 83% of participating law firms have level-specific initiatives to improve promotion rates for women versus 56% for participating corporations in the overall sample.  Even so, Corporate Land has been (somewhat) more successful in increasing the percent of women in their senior ranks.[5]

Clearly what law firms have been doing has not made a dent and if the status quo continues there’s little likelihood of significant improvement.  Which brings to mind the definition of insanity attributed to Einstein, “doing the same thing over and over again and expecting different results.”

What gives?

It seems as if we (and others, in fairness) have been going about this all the wrong way.  A revelatory piece in the Harvard Business Review points in an entirely new direction.  I’m referring to “What Most People Get Wrong about Men and Women,” by Catherine H. Tinsley and Robin J. Ely. The sub-head neatly encapsulates the findings and thesis of their piece; “research shows the sexes aren’t so different.”

Supported by rigorous, multi-sourced research, they contend “the sexes are far more similar in their inclinations, attitudes, and skills than popular opinion would have us believe.”  The problem is that organizations, acting on  foundational, but incorrect stereotypes of gender differences, have instituted policies, company practices and patterns of interaction that create entirely different workplace experiences for men and women.  Again, to quote the article, “When facing dissimilar circumstances, people respond differently – not because of their sex but because of their situations.”

The solution is not to “fix” the women, but rather to change the workplace dynamics that produce different experiences for the genders.  (Read that sentence again.)

Virtually all of the discourse or “advice” on increasing gender diversity – as far back as I can remember (bow ties for women – really?) and as recently as Lean In – has focused on changes women need to make to better align with corporate culture.

In clear, highly readable prose, Professors Tinsley and Ely debunk some of the most stubborn and commonly-held stereotypes about gender differences using meta-analyses[6] and real-world examples.  They also offer plausible remedies to avoid succumbing to the stereotypes. The stereotypes addressed in their piece include that women lack the stomach or skill to negotiate effectively, they lack confidence and are less likely to be risk takers.  In all cases, the research unequivocally upends these commonly held assumptions.

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