By Kenneth Imo
Microsoft Corporation published a report indicating that African Americans represent 4.2 percent of the legal profession, which is far fewer than their representation among accountants/auditors (9.8 percent), financial managers (8.5 percent) and physicians/surgeons (7.1 percent). The June 2014 edition of the American Lawyer painted an even bleaker picture for law firms in “The Diversity Crisis: Big Firms’ Continuing Failure.” In 2013, one in 54 (1.9 percent) of partners were African American and 0.5 percent (1 in 170) were black women. Equally concerning is that the general representation of black attorneys in big firms currently sits at 3.0 percent—the lowest level since 2000—which, if this is a trend, is indicative of a thin pipeline only getting thinner.
These stats are particularly alarming when viewed in the context of the pressures facing all lawyers in a market undergoing rapid change: clients are constantly looking for ways to reduce their legal spend; too many lawyers are chasing a shrinking amount of work; and all partners face a vicious cycle of simultaneously keeping existing clients, while trying to acquire new business in a tightening legal market. While making partner has never been easy, it’s gotten more difficult for the reasons mentioned above, and because many firms are building practices through acquisition (i.e., lateral hiring), which means fewer opportunities for associates to get elected to the partnership.
What does all of this mean for law firm diversity efforts? It means that the work has gotten harder and it’s time to redouble efforts by being honest and more deliberate in our initiatives. First, with respect to honesty, we must accept that unconscious bias is real, it’s pervasive and it affects hiring, work assignment, performance evaluation and promotion decisions. Second, absent intentional measures to address the consequences of implicit bias, we will continue reading reports and articles about the minimal (and potentially dwindling) numbers of law firm partners of color. The legal profession should attempt to replicate steps taken by other industries that have also struggled with creating and sustaining a diverse workforce at all levels.
The U. S. military, the National Football League, and certain parts of corporate America—three very disparate employers — each have addressed one of their most significant diversity challenges: ensuring that minorities are afforded every opportunity to compete for top jobs. What these employers have in common is that their leaders played (and continue to play) a direct role in tackling unconscious bias. While none of these leaders specifically identified unconscious bias as an impediment to minorities competing for leadership positions, they knew something was not right; when they got involved, they did so in a way that directly addressed the consequences of unconscious bias.
We know how to make generals; we’ve been doing it a long time
The U.S. military recognized that minority officers were not afforded the same opportunities for career advancement as white officers, and addressed this by taking deliberate and targeted measures. General Eric Shinseki, former chief of staff of the Army, ordered the service to conduct a study identifying the root cause of the lack of minority general officers. A report by Col. Anthony D. Reyes titled, “Strategic Options for Managing Diversity in the U.S. Army,” found, in part, that minorities were significantly underrepresented in combat arms branches—the largest pipeline for promotion to general officer ranks. The Army then took steps to ensure that minority officers were at least being considered for this branch, and began to aggressively recruit them for combat arms positions.
The American Forces Press Service reported that Admiral Mike Mullen, former chairman of the Joint Chiefs of Staff, took similar steps to ensure that minorities had the opportunity to compete for admiral, the Navy’s highest officer rank. Admiral Mullen once said: “We know how to make [general officers]…we’ve been doing it a long time… You put [people] in the right jobs, and if they do well they get promoted.” So, in 2005, when he became chief of naval operations, Admiral Mullen made increasing diversity a top priority and changed the assignment process to ensure that more minorities were being considered for positions that put them on the senior leadership track. To foster accountability, he required his direct reports (other senior officers) to provide him with regular diversity updates.
Over the past decade, the National Football League also took deliberate steps to promote diversity that resulted in eight of the league’s 32 teams being led by minority head coaches at the beginning of the 2011 season. This is significant: by contrast, between 1920 and 2000, only six of 400 NFL head coaching positions were held by African Americans. The NFL received significant criticism for its hiring practices, and a renowned criminal defense attorney, the late Johnnie Cochran, threatened to file a race discrimination lawsuit against the league. The NFL responded by creating a diversity committee led by Dan Rooney, legendary owner of the Pittsburgh Steelers, to examine the league’s hiring practices and make recommendations.
Rooney’s diversity committee concluded that overt racism was not a factor, but that the NFL was the consummate good old boys’ club, and owners and other top-level executives based hiring decisions partly on relationships. African Americans who sought head coaching positions did not belong to the same social or professional circles as team owners; as a result, when an opening became available, they were often long shots for getting the job. Rooney’s group decided that the league had to create a way to force owners to interact with African American candidates. Their proposal required each team to consider at least one minority candidate for every head coaching vacancy and suggested that the league impose a fine on teams that did not comply. The NFL adopted this proposal, which later became known as the Rooney Rule.
The Rooney Rule does not guarantee a job. But it does guarantee that people who have otherwise been excluded from consideration have an opportunity to compete for a job. The rule benefits candidates and owners. If a minority head coach candidate is not hired for that particular job, the Rooney Rule gave him exposure to the process—better positioning him for future opportunities. Implementation of the rule provided owners with a broader candidate pool of qualified people from which to hire a coach. The Rooney Rule is a diversity success story: The Institute for Diversity and Ethics In Sport consistently gives the NFL an A grade for racial diversity; the NFL applies the rule to all executive-level positions in the league’s corporate office; six of the 32 NFL general managers are racial minorities; six of the last eight Super Bowls have featured teams with an African American head coach or general manager; and in the 2013 offseason, when African Americans were not selected for head coaching vacancies, NFL Commissioner Roger Goodell proclaimed his disappointment publicly — furthering reiterating the importance of diverse leadership on NFL sidelines.
Your eyes may be color blind, but your mind isn’t
Why did top military officials have to intervene to ensure that junior minority officers were considered for assignments that would place them on the path to becoming generals? And why did the NFL have to implement the Rooney Rule to ensure that minorities were considered for head coaching positions? Some would say racism is clearly the problem, but it’s more complicated than that. While racial prejudice still exists in 2014, most people are not overt racists and would not knowingly discriminate against anyone. However, in the “The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism,” Professor Charles R. Lawrence III of the William S. Richardson School of Law states that the persistence of racism and the role it has played in our society has shaped our attitudes and beliefs about race in ways that can (and often do) subconsciously influence our actions. So a better answer to the questions above is that unconscious bias has replaced overt bigotry as the problem.
Professor Linda Hamilton Krieger of the UC Berkeley School of Law describes unconscious bias as the way people’s normal cognitive processes related to categorization produce and perpetuate intergroup bias. Stereotyping is an example of a perfectly normal cognitive process that we use to quickly perceive, process, and retain information about people. While stereotyping is normal, it can result in snap judgments that reinforce negative preconceived notions about certain groups of people, exacerbating the impact of bias on our judgment and decision-making. Further, because we perform poorly in noticing and understanding our cognitive processes, we, as decision-makers, are often unaware of how stereotyping influences our actions.
Malcolm Gladwell, author of Blink, refers to stereotyping and other forms of rapid cognitive processes as “thin-slicing”: the way we quickly and unconsciously find patterns in situations and behavior, sometimes based on our previous experiences. In some instances, these processes lead to the right conclusions. Thin-slicing is not fool-proof, however, and can be problematic, particularly when it produces snap judgments about people based on how they look. To determine how our subconscious influences our attitudes about people of different races, genders and ages, a group of scientists from Harvard University, the University of Washington, and the University of Virginia created the Implicit Association Test (IAT).
The IAT measures the time it takes for users to make automatic associations with the traits mentioned above. The test suggests that it usually takes people longer to associate two items that they may subconsciously perceive as incompatible—e.g., a white or black face with a positive or negative word. Because the IAT is a computer-based test, responses are measurable down to milliseconds. The test requires rapid responses so as to inhibit the test-taker’s ability to be introspective and to reduce the roles of conscious intention, self-reflection and deliberative processes. The goal is to tease out the impact of previous experiences on current performance. In some ways the test measures the real-time interactions between the two aspects of our thinking described by psychologists as System 1 and System 2.
Dr. Daniel Kahneman’s book, Thinking Fast and Slow, defines System 1 as the part of the mind that “operates automatically and quickly, with little or no effort and no sense of voluntary control.” For example, this system helps us detect hostility in a voice, read words on large billboards, or understand simple sentences – tasks that require very little, if any, attention. System 2 “allocates attention to the effortful mental activities that demand it.” This system becomes engaged when, for example, we distinguish voices in a crowded room, monitor the appropriateness of our behavior in social settings, or fill out tax forms – activities that require concentration.
Dr. Kahneman describes System 1 as “gullible and biased to believe,” while System 2 is more discerning and doubtful but is “sometimes busy and often lazy.” The explicit beliefs and deliberate choices of System 2 are influenced by the impressions, intuitions and feelings that System 1 constantly feeds it. If System 2 accepts what it’s given, impressions and intuitions become beliefs, and impulses become voluntary actions. The IAT seeks to demonstrate the interplay between the two systems and its impact on how the mind processes issues regarding age, gender, race, and sexual orientation.
The IAT has produced interesting findings, suggesting that 80 percent of those tested have a pro-white bias, including half of all African Americans. People are often unaware of their biases, which further suggests that even those who believe themselves to be color blind may well harbor unconscious attitudes toward certain groups of people – perhaps positive for some, but negative for others. Also, while we like to think that we treat everyone fairly, implicit biases often influence behavior. For example, the higher your unconscious bias against a group, the more likely it is that you will discriminate against someone in that group. A particularly eye-opening aspect of the test is that it reveals ways in which our unconscious and stated conscious values may be at odds with each other. To say that these findings are unsettling is an understatement. They are disturbing because unconscious bias is quite pervasive. Consider the examples below.
- Until the 1970s, men represented an overwhelming majority of musicians in major symphony orchestras. Symphonies began hiring more women when they used screens during auditions to conceal the candidate’s gender.
- Researchers conducted a study in two major U.S. cities to examine the impact of race on hiring decisions. They found that resumes with “white” sounding names (e.g., Emily and Greg) received 50 percent more call backs than resumes with “black” sounding names (e.g., Lakisha and Jamaal).
- Statistical data taken from NBA games over a 12-year period revealed that white referees called proportionately more fouls on black players than they called on whites, and black officials called proportionately more fouls on white players than they called on blacks.
- Sixty partners agreed to participate in a study conducted by Nextions, a law firm diversity consultant and leadership coaching firm, that asked them to review the same hypothetical memo written by an associate containing several errors inserted intentionally. Half of the participants were told a black associate wrote the memo, and other were told the associate was white. On average, the white associate received a significantly higher score.
Mentors are good; sponsors are better
Many experts have observed that corporations outpace law firms when it comes to diversity, but they also struggle with bias and its impact on their ability to retain and promote minorities. In Breaking Through: The Making of Minority Executives in Corporate America, Dean David Thomas of Georgetown University’s McDonough School of Business states that minorities in corporate settings are often overlooked for promotions because people tend to view members of their own racial groups as more promotable, and often give them higher performance ratings. Consequently, “high-performing minorities remain comparatively invisible in the selection process.” Organizations that seek to improve diversity in their senior ranks recognize this as a problem, and are proactive about identifying promising minorities to be sponsored by an influential senior executive—usually a white man. Thomas’s research found that involving senior executives as sponsors boosted promising minorities’ careers by receiving high-visibility assignments, demonstrated leadership’s personal investment in promoting diversity to the entire organization, and helped convince minorities they had a real opportunity at attaining senior executive status because leadership didn’t just pay lip service to diversity.
Ursula Burns, who rose to become CEO of Xerox and the first female African American of a Fortune 100 company, presents an interesting case study for sponsorship. As told by Adam Bryant in a 2010 New York Times article, Burns distinguished herself early and, as a result, had several people—mostly white men—take an interest in ensuring she received opportunities for additional responsibility and high visibility within the corporation. Their efforts sent the message that influential executives at Xerox recognized her potential. They taught her how to navigate the company’s culture; the importance of polish, patience and perspective; and the need to foster buy-in from co-workers and superiors.
Law firms talk a lot about the importance of mentoring and how to make busy partners better at it, but spend very little time discussing the importance of, and need for, sponsors. Many law firms have formal mentoring programs that pair associates with partners who are responsible, for example, for delivering evaluations and providing professional development suggestions. These mentors are important, but sponsors are absolutely essential. Mentors are counselors who give career advice and provide suggestions on how to navigate certain situations. Sponsors can do everything that mentors do, but also have the stature and gravitas to help people become partners. They wield their influence to further a junior’s lawyers career by calling in favors, bringing attention to the associate’s successes, and helping them cultivate important relationships with other influential lawyers and clients—all of which are absolutely essential in law firms. Every sponsor can be a mentor, but not every mentor can be a sponsor.
Sponsorship is not a foreign concept for law firms. In fact, it is deeply rooted in the origins of a profession based on an apprenticeship model. For generations, junior lawyers learned the practice of law from senior attorneys who, over time, gave them more responsibility and eventually direct access and exposure to clients. These senior lawyers also sponsored their protégés during the partnership election process. Certain aspects of traditional legal practice are not feasible in today’s large law firm with hundreds if not thousands of lawyers, so many firms have created formal training and mentoring programs to fill the void. While these programs may be effective, there is no substitute for learning at the side of an experienced lawyer with the influence to position a lawyer for long-term success. This was true during the apprenticeship days of the profession and remains so today because associates who become partners have sponsors.
Sponsors may be more important now, because firms are so large and because the partnership election process is opaque and has the potential to be highly political. Viable candidates need someone who will vouch for their legal acumen and clearly articulate the lawyer’s business case for promotion—i.e., their potential to build a lucrative practice or support another partner in growing a practice that supports their law firm. The business case is determined by lawyers’ relationships with clients and senior lawyers willing to give them work. Professor David Wilkins of Harvard Law School and G. Mitu Gulati of Duke University, in their study titled, “Why Are There So Few Black Lawyers in Corporate Law Firms?” found that this system disadvantages minorities for two reasons: (1) they are less likely than whites to have relationships with in-house counsel who can give them business; and (2) the internal market is built on reciprocity, so other lawyers may be less inclined to give work to minorities who typically have less access to well-paying clients. An effective sponsor can start early to anticipate the business case and proactively look for ways to give a protégé access and exposure to the firm’s institutional clients and other influential partners.
Serious conversations about the business case for promotion occur when associates are within a year or two of partnership consideration. As a result, sponsorship relationships must develop much earlier. Because the lawyer evaluation process also serves as a ranking system, an early misstep can eliminate a junior lawyer—particularly a minority associate—from ever gaining an advocate to help his or her career advance within the firm. As previously noted, unconscious bias influences how we perceive people, so it may be harder for a minority lawyer to recover from a mistake because it may subconsciously confirm for some that minority lawyers are not as capable as whites. The converse of this “one-mistake rule” is the halo effect: a junior lawyer impresses a partner by consistently doing outstanding work; the partner tells his/her colleagues, and the junior lawyer becomes known as a superstar. Associates with the halo aren’t subject to the one-mistake rule because their missteps are seen as anomalies. They also have enough supporters in their corner to help overcome any potential obstacles that may arise from their mistake (obviously depending on its magnitude). Bias also affects who receives the halo, since cognitive associations reinforce positive associations—i.e., if someone is already perceived to be a star, then they must be. This is not to suggest that the halo is not deserved or earned, but just that unconscious bias may eliminate certain lawyers from being deemed worthy of a halo, which may also reduce their chances of receiving a sponsor naturally.
Enlisting influential partners as sponsors
The examples in this article simply underscore the importance of the role that leaders play in advancing talented minorities. It is no accident that Dan Rooney led the NFL’s efforts to hire more African-American head coaches, or that the military’s top brass played a direct hand in increasing opportunities for promising minority officers. The leaders of corporations and other organizations who want to improve their diversity efforts have taken deliberate steps to push the needle, and law firms could do the same thing. The law firm that is committed to diversity and is growing frustrated with the slow pace of progress should enlist its most influential partners to serve as sponsors for minority lawyers.
How should that step take place? Here is one approach: In each practice group or office, the group’s leader meets periodically with a senior leader of the firm – preferably its chairman, but at least a member of its management committee – and the chair of the diversity committee. The goal is to assess the progress and prospects of the group’s minority lawyers, with an eye toward improving retention and advancement rates. The meetings address work assignments (what lawyers are working on and with whom), evaluations, and, if the firm has a formal mentoring program, the effectiveness of mentor-mentee pairings. Participants leave the discussion with a better sense of how their minority lawyers are progressing and of the concrete steps that need to be taken to improve their access to work, clients, and influential partners. And, perhaps most importantly, specific sponsors are identified and assigned to associates who have shown promise and whom the firm wants to retain and, if they eventually meet the standards for partnership, to promote. Sponsors are asked to commit to taking specific steps for their associates — though no more than what they have done for others they sponsored organically in the past. And they also are asked at subsequent meetings to report on the steps they have taken.
Such meetings directly engage decision-makers in bolstering the firm’s diversity retention and advancement efforts. The presence of law firm leaders sends the message that a diverse partnership is important to the firm’s leadership, and many of these senior lawyers are in the best position to serve as sponsors. If for some reason they are not the appropriate people to serve as sponsors—either because they are in a different practice group, or for some other reason—they are in the best position to act as ambassadors for the initiative. Specifically, they can enlist other influential lawyers to serve as sponsors and explain the importance of the role they are being asked to play. Sponsors can also be assigned, but active recruitment is a better approach; it gives the partner making the request (the ambassador) an opportunity to foster buy-in and promote the significance of this intentional approach to improving retention and advancement. Further, having a chairman or other firm leader reach out to another senior partner adds credibility to the effort.
As previously mentioned, sponsorship is not new to law firms, but mentoring has been the main focus. To avoid confusion with a mentoring program, potential sponsors should receive a clear explanation of how this role differs from what they do as mentors. Sylvia Ann Hewlett, founding President of the Center for Talent Innovation (formerly Center for Work-Life Policy), describes in a 2011 Harvard Business Review article that a sponsor is someone who uses chips on behalf of protégés, advocates for promotions and does at least two of the following seven things for them: expands the protégés’ perception of what they can do, connects them to senior leaders, promotes their visibility, connects them to career advancement opportunities, advises them on how to look and act the part, facilitates external contacts, and provides career advice.
Each of these steps is self-explanatory, but a practical example of how this approach would work in a law firm may be helpful. A minority fourth-year litigation associate (let’s call her Kim) in a large Am Law 100 firm has distinguished herself as having what it takes to be viable partnership candidate. Kim knows she is doing well because she consistently receives strong evaluations and partners with whom she works give her positive feedback. Because so few minority partners are in her firm—particularly minority female partners—she doesn’t think partnership is a realistic goal and has already begun to consider leaving the firm. The vice chair of the firm’s litigation department, a white man named John, attends a diversity meeting with the managing partner and other senior leaders in his department where Kim is mentioned as having real promise. The managing partner asks the group who would be the appropriate sponsor for Kim, and John volunteers. He has worked with her in the past and thinks she would be a great fit in his practice, which is quite successful.
John finds a way to give Kim a significant role on an important matter. She does a great job, so he encourages junior partners working on his matters to give her more work. To increase Kim’s exposure, John finds ways to get her on the radar of senior litigation partners in other offices across the firm, and takes her to client meetings so she can cultivate relationships with in-house lawyers. With John’s help, the foundation for Kim’s business case is being laid: she gains several sponsors and informal mentors, develops relationships with key clients and carves out a niche that supports John’s and, as needed, other partners’ practices. John lets everyone know that he is her biggest supporter and doesn’t miss an opportunity to sing her praises to other lawyers in the firm.
In this example, John performs at least five of the nine functions associated with effective sponsors. John gives Kim high-level responsibilities on his matters that create career advancement opportunities. John increases Kim’s visibility by connecting her to senior and junior partners across the department and firm. He facilitates external contacts by taking Kim to client meetings, thus giving her opportunities to cultivate important external relationships. Throughout this process, without making any promises, John is letting Kim know that partnership is a realistic goal. These conversations expand Kim’s perception of what she can accomplish in the firm; as a result, she becomes more invested in the organization and no longer looks for other opportunities. Without overtly calling in favors for Kim, John is sending the message that he fully supports her by simply telling everyone how great she is; consequently, it is no secret that John will advocate for her election to the partnership when Kim is eligible.
Some people may consider a deliberate approach to improving diversity in the partnership ranks controversial because they think it a) gives certain people an unfair advantage, or b) it is remedial and therefore demeaning. It is neither. It simply acknowledges that the status quo is not working and, absent intentional measures, unconscious bias will continue to inhibit efforts to improve diversity in law firm partnerships. Recognition of this reality has influenced major corporations to intentionally create sponsorship relationships. American Express, for example, has a program designed to establish powerful alliances for women across the organization. Its goal is that, by 2015, women with long-term potential for success in the company will have two to three advocates to assist in their advancement. This approach would serve the same purpose in law firms: to ensure that partners with the ability to affect change play a direct role in helping talented lawyers advance. As Dean Thomas’s research indicates, minorities often remain invisible when promotion decisions are made. Real change occurs when intentional steps are taken to make talented minorities visible in their organizations. This approach has proved successful in other organizations, and law firms could have similar success if their leaders are also willing to push the needle.
About the Author
Kenneth Imo is the director of diversity at WilmerHale. He can be reached at 202.247.2017.