May 3, 2023
In a recent article published by the Harvard Business Review, Dr. Simran Jeet Singh argues tokenism is a persistent and growing problem. While progress has been made with diversity, equity and inclusion (DE&I) initiatives, tokenism — the practice of hiring or promoting individuals from underrepresented groups in a way that provides a superficial appearance of diversity, while failing to address systemic issues — is still prevalent. This is particularly true in the legal profession, where women lawyers continue to face barriers to advancement, unequal pay and a lack of representation in leadership positions.
Tokenism of women lawyers is not only ethically problematic but also potentially damaging to a law firm’s reputation.
In a research study of 1,200 United States lawyers conducted by McKinsey & Company, tokenism was shown to have negative effects on both individuals and organizations. Women who experience tokenism are often excluded from decision-making, have limited access to mentorship and professional development opportunities, and are subject to stereotypes and biases that can undermine their credibility and effectiveness. At the same time, organizations that rely on tokenism to promote DE&I are unlikely to reap the full benefits of a diverse workforce such as increased innovation, better decision-making and improved performance.
Some law firms continue to rely on tokenism to promote their legitimacy to clients and peers. This practice is not only ethically problematic but also potentially damaging to the firm's reputation.
One important factor contributing to tokenism in law firms is the persistent gender gap in leadership positions. Despite efforts to increase the representation of women in law firms, they remain significantly underrepresented in partner and leadership roles. McKinsey & Company found that women make up only 19% of law firm equity partners in the U.S. and only 10% of managing partners. This gap reflects broader societal biases and a self-reinforcing cycle in which women are less likely to receive mentorship and sponsorship from senior leaders and, therefore, are less likely to advance into leadership positions themselves.
In instances where women are in leadership positions, Peterson and Fardner found that is still not enough to influence change. In reviewing data from 75 companies represented in the Financial Times Stock Exchange (FTSE) 350 index that went beyond the simple representation of diverse professionals in leadership and board positions, they found that changing the composition of leadership boards is not enough to ensure diverse perspectives are integrated into decision-making.
To address these challenges, it’s crucial for law firms to take proactive steps to promote genuine diversity, equity and inclusion. According to Peterson and Fardner, this requires not only increasing the representation of diverse lawyers in leadership roles but also creating a culture that values and rewards diverse perspectives and contributions, adopts an intersectional approach and challenges assumptions about status and experience.
Some strategies for achieving these goals may include providing mentorship and sponsorship opportunities, implementing transparent and objective promotion criteria, and using data analytics as a driver to leverage DE&I goals.
Mentorship and Sponsorship Initiatives
Mentorship programs can provide lawyers with access to senior leaders who can offer guidance, support and opportunities for career advancement. Sponsorship programs are different in that they involve senior leaders actively advocating for and promoting the careers of junior lawyers, particularly those from underrepresented groups.
Authors Dobbin and Kalev highlight positive result of good mentoring and sponsorship programs in their article “Why Diversity Program Fails.” They point out that in the process of mentorship, leaders chip away at their biases. The belief of “if I’m mentoring/sponsoring, this person must be deserving” leads mentors to truly engage and believe their protégés merit these opportunities, whether they’re women, Black or from any other minority group.
Several law firms have implemented successful mentorship and sponsorship programs aimed at supporting women lawyers. For example, Orrick, Herrington & Sutcliffe LLP launched the Women's Initiative Network (WIN) to provide mentorship, networking and leadership development opportunities for women lawyers. The program includes a formal mentorship program, training workshops and networking events. As a result of these efforts, Orrick has seen an increase in the representation of women in leadership positions, having 45% of the firm’s lateral hires globally be women lawyers. This number is higher when looking at only 2023’s data, with 67% of the lateral hires being comprised of women. According to the firm’s recent announcement in February 2023, its most recent partnership class in the U.S. class was 71% diverse, including women, LGBTQIA+ and Black lawyers.
Transparent and Objective Promotion Criteria
Clear and equitable promotion criteria can help ensure all lawyers are evaluated on their merits and given equal career advancement opportunities, preventing bias and subjective judgment from influencing promotion decisions.
Latham & Watkins has established a formal set of objective promotion criteria applied consistently across its offices and practice areas. The #myadvancement program aims to promote associates’ development through holistic support. The firm also has a transparent compensation salary plan and their promotion process involves a rigorous evaluation of candidates' performance against these criteria, including input from their Associates Committee provided twice per year.
While implementing transparent and objective promotion criteria can be an effective strategy for promoting DE&I in law firms, it is important to ensure these criteria are applied fairly and consistently across all lawyers. This requires addressing potential biases and barriers that may influence promotion decisions, such as stereotypes about women's abilities or assumptions about their work-life balance. Law firms may need to take proactive steps to promote inclusivity and equity to address these challenges, including monitoring promotion decisions for biases.
Data Analytics as a Driver of DE&I Progress
To drive DE&I, law firms can adopt strategies normally applied for maximizing profits and effectiveness such as setting goals, collecting data and analyzing change over time, and compare these strategies to other organizations.
Researchers Chilazi and Bohnet argue that leveraging data on diversity can increase accountability and transparency. For instance, law firms can set concrete goals and timelines for improvement by identifying shortfalls in the representation of underrepresented groups compared to their peers. Sharing these goals with key stakeholders promotes accountability and enables continuous progress tracking and problem solving. However, effective implementation requires appropriate data analysis and the engagement of key partners in shaping the way forward.
While DE&I programs are crucial to creating more inclusive workplaces, tokenism is a detrimental pitfall law firms must recognize and combat. The mere appearance of diversity without genuine inclusion can result in underrepresented individuals being reduced to symbolic gestures without meaningful opportunities for growth and advancement. Tokenism can also perpetuate bias, hinder progress and erode trust among firm members.
Much work must still be done to address tokenism and promote true diversity and inclusion within the legal industry. By doing this, the industry can become more equitable, innovative and resilient, and better serve clients and society as a whole.
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