A Black female attorney recalls being told as an associate that she was being put on a case because they “need a Black face.”
A White male partner told a Latina associate, “you might not be the right person to argue before the Minnesota Supreme Court.”
A Black female associate recalls being the only woman and person of color in a trial and the only person whose objections were consistently overruled. Her colleagues noticed she was being treated differently—but did nothing.
A White female attorney recalls that a Ramsey County judge referred to women attorneys as “lawyerettes.”
After interviewing a White woman job applicant, a White male partner said to a White female colleague, referring to the interviewee’s masculine-cut suit, “what was with the lesbian costume?”
A senior White male partner assigned the depositions for a case to the brand-new junior male instead of the Asian female associate who had worked on the case for years. When she asked the senior partner to explain the decision, she was given no explanation, but was permitted to second chair the depositions.
A Black male partner recalls a colleague insulting his outfits for other attorneys to hear at every firm event. No one stood up for him or stopped the partner’s colleague.
A Black female attorney recalls being told as a first-year summer associate at a large firm that the partners believed the only other Black female at the firm (a mid-level associate) wrote her final memo for her because her writing had improved considerably over the summer.
Just last year, this article’s two authors, both of whom are White female attorneys, were told to wear skirt suits during a trial because the judge “preferred it that way.”
And so on.
* * * *
Our profession is the least diverse in the nation. “Eighty-eight percent of lawyers are White,” and sixty-two percent are male. But law firms’ numbers are even more troubling than our profession’s generally. The 2019 figures from the National Association for Law Placement show that—at law firms—under one in five equity partners are women (or 19.6 percent), and only 6.6 percent are racial or ethnic minorities. The most depressing news is that we are not making meaningful progress. Currently, Black representation among firm associates is 4.48 percent. This number is less than in 2009 when Black associates constituted 4.66 percent of law firm associates.
While law firms’ lack of diversity remains persistent, the narrative explaining the lack of diversity continues to evolve. For years, commentators and scholars assumed that the issue was one of pipeline. With respect to gender equity, people expected that once law school graduation rates equalized between men and women, the “pipeline would fuel firm diversity and cause partnerships to equalize as well.” Yet, women and men have graduated from law schools in nearly equal numbers since the 1980s, and the disparity remains. With respect to racial and ethnic diversity, although Blacks, Latinos, Asian Americans, and Native Americans constitute one-fifth of law school graduates, these numbers are not reflected in law firms—especially not among the senior levels.
Fourteen years ago, the New York Times suggested that so few women reach the top of big law firms due to a lack of mentorship, lack of networking opportunities, and the demands of motherhood, in which firm structures did not support working parents. More recent research highlights the role of bias in law firms as impacting both women and people of color. For example, one study showed that law firm partners rated the same legal memo higher when they believed a White associate drafted it than when they believed a Black associate drafted it. But there are downsides with an implicit bias narrative. It is both overbroad and inappropriate to view all discrimination as unconscious or implicit (and courts, of course, struggle to accept claims based on allegedly unconscious actions). Moreover, lawyers at firms continue to experience explicit racism and sexism, including micro-aggressions, racist staffing decisions, and even sexual assault that is anything but unconscious or implicit.
This article begins from the premise that there is no single reason for our profession’s stubborn lack of diversity. Instead, a multitude of factors, including systemic racism and sexism, unconscious bias, and law firm structures, contribute to this problem. This article aims to help solve the problem by offering a toolkit of practical actions that law firms can implement. We crafted this toolkit by analyzing the research, identifying the problems, reviewing recommended best practices, and listening to successful diverse attorneys who identified what worked and what did not in their offices and on their own paths to success.
As a first step, Section II of this article provides the authors’ positions as to why improving our profession’s diversity is of crucial importance.
Section III sets forth our research methods and provides an overview of our interviews with more than twenty diverse attorneys.
Section IV catalogs why the legal profession (and law firms more specifically) struggle to hire, promote, and retain diverse talent.
Section V details the ways in which this struggle plays out in the hiring, promotion, and retention of diverse talent and offers a toolkit for change.
Section VI offers diverse attorneys’ strategies for addressing some of these obstacles individually.
And Section VII concludes by returning to the voices of the successful, diverse attorneys that we interviewed. We asked our interviewees how they stay motivated in the face of these issues. Their responses were inspiring and haunting.