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 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, 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.”
How bad is it in Law Land?
In the most recent (2018) report from the National Association of Women Lawyers (NAWL) 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.
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.”
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 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.
They continue that in any organization individual success is partly driven by how they are treated and the opportunities available to them. To expand on this point, again quoting from the piece, “people are more likely to behave in ways that undermine their chances for success when they are disconnected from information networks, when they are judged or penalized disproportionately harshly for mistakes or failures, and when they lack feedback.”
Again supported by rigorous research, it’s an unfortunate fact that women are more likely to experience these dynamics. Therefore, since women experience a higher degree of scrutiny and are penalized more harshly for even small mistakes (than men are), not speaking up in meetings is a perfectly rational response. The result? They appear to lack confidence in their ideas. Voilà! Stereotype confirmed.
So, what about gender differences in Law Land?
For this we turn to the ever-charming Dr. Larry Richard, the leading expert on lawyer psychology who, using the rigorous Caliper instrument has gathered and analyzed personality data on thousands of lawyers (as well as other white-collar professionals). As Dr. Richard reports, “In the general population, women score slightly higher than men in Empathy and in Sociability on the Caliper. A more recent study shows that women leaders are also higher on a number of the ‘persuasive’ traits. But within the legal profession, these differences largely disappear.” (Emphasis mine.)
What doesn’t work?
Hmmm. Where to start? Sadly, many of the well-intentioned “women’s initiatives” at firms have actually been counterproductive (obviously some have had a positive impact – but not enough to move the needle industry-wide). Caren Ulrich Stacy, Founder & CEO of the Diversity Lab notes, “Gender diversity is not a woman-only problem, therefore, initiatives such as women’s retreats without the other half of the population working in collaboration often undermine the very people they’re trying to help.” Further, the additional, non-billing time required to participate in women’s initiatives is often viewed as an extra burden by younger female attorneys.
Certainly exhortations to become more diverse, without plausible remedies are pretty much a waste of time. NAWL issued its first “NAWL Challenge” in 2006, which called for a goal to increase women equity partners at law firms to at least 30%. That was so successful (not) that they issued another “challenge” in 2016: “The One-Third by 2020 Challenge,” like changing the wording will have an effect. They further acknowledged the widespread adoption of women’s initiatives has not really made a difference.
Not to be outdone, in 2016 the ABA issued Resolution 113 that “urges all providers of legal services, particularly law firms, to expand and create opportunities at all levels of responsibility for diverse attorneys.” Their “remedy” seems to boil down to measuring everything in sight, implementing “bias interrupters” and ratcheting these up if goals are not met. “The top line takeaway is you need to analyze with metrics so there can be little question about what is currently happening in a given workplace,” said the chair of the ABA Women’s Commission. She added, “If you don’t see change, use an iterative process until your metrics improve.” Huh? If at first you don’t succeed… Frankly, this approach could take millennia. (Einstein, anyone?)
What are the specific challenges for Law Land?
It is an understatement that Law Land operates in ways vastly different from Corporate Land. On a macro basis. Law firms have much less of a business mindset which impacts virtually every function at a firm, and, as it turns out, hobbles their efforts to increase diversity. Professor William Henderson rigorously lays out the argument for greater intentionality in all phases of a lawyer’s development – from selection, through development, training and coaching in Solving the Legal Profession’s Diversity Problem.
He posits, “the profession’s lack of progress on diversity is a systems problem.” The systems he refers to are those for recruitment, selection, development, feedback, evaluation and promotion. Systems that take green law school graduates and, over time (and a great deal of effort on their part) builds them into experienced partners. He adds, “the system is driven more by tradition and past practice than science.” Moreover, the “systems” are sabotaged by a virtual absence of truly helpful data. He notes, ”To the extent the system relies on measurement, the quality of the data is uneven and under-analyzed.” One of many examples is the industry’s heavy reliance on relative academic achievement in the selection stage which does not correlate positively with success.
Henderson, then goes through each of the aspects discussed above (recruitment, selection, development, feedback, evaluation and promotion) and provides evidence-based remedies.
His approach would certainly deliver on the premise outlined in Professors Tinsley’s and Ely’s piece; everyone would experience more similar experiences (with better data, to boot). In this, Henderson is absolutely right. That said, based on the peculiarities of Law Land (which he acknowledges and is keenly aware of), I fear his remedies are overly ambitious for the far majority of law firms; the patients’ antibodies would likely reject the graft.
What’s working in Law Land?
There are some basics that most firms have undertaken and, should certainly continue – such as firm-wide implicit-bias training, return-to-work programs, etc.
And, recently, there have been some new developments that hold promise for approaches that might actually work.
The “Mansfield Rule” requires law firms to include 30% diverse candidates (women and minorities) in slates for significant leadership roles. This was first piloted in 2017 under the guidance of Stacy’s Diversity Lab with 50 law firms participating. It was reported that a total of 41 firms completed the one-year program, with 40% reporting increased diversity in their leadership ranks and 38% reported increases in partner promotions for women and diverse candidates. Angela Quinn, Chief Client Officer at Husch Blackwell, one of the participating firms, said, “We were focused on diversity before, but now it is more intentional – a way of life.”
Generally speaking, I’m not a fan of quotas, but this may be a valid mechanism to jumpstart institutionalizing consideration of similarly-qualified diverse and non-diverse candidates for a given position – diversity “training wheels,” so to speak. Moreover, we don’t know what might have transpired at these firms had they not adopted the Mansfield Rule. That said, I have to believe once it becomes SOP to consider diverse candidates alongside their non-diverse peers, diverse candidates will be less likely to be viewed as “other” and, therefore be on more equal footing.
“Male Allies” is another great idea. I like this for its very simplicity and the fact that it happens in the trenches (NB: this technique is not Law Land-focused; many corporations also employ it.). We have recently heard many well-regarded MPs and Chairs speak convincingly, even passionately about their mandate to increase diversity at their firms – and they mean it. That said, it is farther down in their organizations where the day-to-day decisions reside – regarding clients, assignments, who’s “at the table,” etc. Contemporaneous “interventions” at the grass roots level can raise awareness and begin to change a firm’s culture from the ground up.
Thomson Reuters supports an intensive program for a select group of “up-and-coming,” newly-minted female partners at AmLaw 50 firms. Called Transforming Women’s Leadership in the Law (TWLL), it provides, among other things, access to powerful GCs, insights into the business of law and business development opportunities. (Full disclosure, I’ve spoken at TWLL events.) Natalie Runyon, program strategist for TWLL who is hardly starry-eyed about the current state of diversity but does see progress. She noted, “Firms are heading in the right direction.” She added, “I’d be more confident that true change will result when there’s more action and tactics at the practice group-level.”
Again, I’m not a fan of women-only initiatives (and, as discussed, they often backfire). That said, this program evinces a level of gravitas I’ve rarely seen. (Compared to, say, the bone-headed firm who brought in representatives from Ann Taylor to provide their female associates with wardrobe advice.)
Professors Tinsley and Ely have effectively re-framed the issue; it’s not what’s lacking in women – it’s how organizations are failing them. Addressing this will require, first, a clear-eyed assessment of what’s actually happening at your firm and developing remedies to address issues impeding women’s progress. Obviously, tailor your remedies to be relevant to the issues at your firm. (“Industry best practices” oftentimes aren’t) The good news is that you can scrap some of the more ineffective or counterproductive programs, so changing courses won’t necessarily over-burden the firm or incur entirely incremental expenses (and some initiatives, such as Male Allies, cost virtually nothing). The benefits of a more productive, diverse workplace will redound throughout the firm – well into the future.
“We will know we have achieved gender parity when an average woman rises to the same level as an average man.” – Anon.
 This piece focuses on gender diversity because it was inspired by novel research on that topic – and not other diverse groups. It wouldn’t be too much of a stretch to assume much of this applies to other diverse groups – but first, that would need to be researched as persuasively as was gender diversity in this case.
 https://www.mckinsey.com/business-functions/organization/our-insights/delivering-through-diversity with a data set of over 1,000 companies covering 12 countries is an update of their 2015 study, Why diversity matters.
 The Guardian, January 26, 2019, https://www.theguardian.com/science/2019/jan/26/steven-johnson-farsighted-how-we-make-decisions-that-matter-most
 The McKinsey report states that women in Corporate Land represent 29% at the VP level, 21% at the SVP level and 20% of the C-suite.
 Meta-analysis combines results of many studies (in one instance researchers analyzed over 200 studies on the topic of gender differences in levels of confidence).
 William (Bill) Henderson is Professor of Law at Indiana University Maurer School of Law. Bill is a prolific author and lecturer on the legal market and has deservedly earned many top industry accolades. We’re also proud to have him as a friend.
 Inspired by the National Football League’s policy called the Rooney Rule which mandates that candidate slates for head coach and senor operation positions include diverse candidates. The Mansfield Rule is named for Arabella Mansfield, the first female lawyer to earn a law license in the US.