The Legal Intelligencer - More Than Meets the Eye: Tackling Deep-Level Diversity in the Law
It is no secret that I am a staunch supporter of diversity, equity and inclusion in this profession as I frequently write, speak and advocate on this initiative. We also know that the legal industry remains the least diverse profession in the nation and despite somewhat consistent incremental increases year over year on diversity statistics, we still have a long way to go. Becoming more diverse, equitable and inclusive is a marathon, a nonstop continuous effort and it is significantly more than just a numbers game. So while those small, incremental increases are a good start, higher diversity numbers are just the beginning to the equitable and inclusive pathway we (should) all be striving towards.
While there are some out there who feel that they have heard (and done) enough about DE&I in this profession, I strongly beg to differ. DE&I is so much more than what our eyes can see and we have only begun to scratch the surface. Diversity for instance, isn’t just those surface level differences that most attribute to DE&I (think gender and race issues) but runs far deeper. Our culture, beliefs, religion, education and socioeconomic status all attribute to what makes us unique and diverse. While there is no argument that gender and race inclusivity definitely belong at the top of the list, we need to also be more mindful that we can be more inclusive when we expand our diversity circle to include areas that don’t always receive as much attention. While the list of the four areas below is not even close to all the ways we can be more diverse, equitable and inclusive, it is a start to getting us there.
The Political Divide
You only need to look at the recent U.S. Supreme Court confirmation hearings to see that we do, in fact, have a long way to go. We should all be joyful that on October 2022, Judge Ketanji Brown Jackson will begin her first term on the Supreme Court as just the sixth woman, but the first Black woman, appointed to the nation’s highest court in its over 233-year history. As evidenced by the barrage of personal and professional attacks during her Supreme Court confirmation hearings, and putting politics (somewhat) aside, the Supreme Court confirmation process, which should represent the pinnacle of a legal career, has degenerated as politicians on both sides of the aisle resort to theatrical antics often unrelated to a candidate’s merits. Jackson’s poise and civility in this setting and beyond offered powerful lessons on how advocates can counter hostility often fueled by misogyny and racism. But as we have all seen in recent years, our political differences have divided us—both at home and in the office.
Even though the recent Supreme Court leak of the draft opinion overturning decisions in both Roe v. Wade and Planned Parenthood v. Casey wasn’t the first security leak at the nation’s highest court (coincidentally the 1973 Roe decision was also leaked before being published), we can expect a greater divide when it comes to our politics. Because political conversations can end a holiday dinner with our families faster than anything else, we must be cognizant of how passionate our peers and colleagues can be about their own political positions and the impact it can have in the office. While it may be very hard to bite your tongue to stop from giving your own opposing political view during conversations, we must all be weary of how that impacts the workplace. Respect in the workplace is key and that includes our ability to respect the political differences of those around us. We may not agree with each other but we must be able to respect that it is ok to be different, including being on opposite ends of the political aisle.
Following close on the heels of political conversations, often comes conversations and differences of opinions on LGBTQ rights and respect. While the Defense of Marriage Act was introduced in 1996, it would take almost 20 more for the Supreme Court to issue its 2015 landmark decision in Obergefell v. Hodges that the fundamental right to marry is guaranteed to same-sex couples. Many now fear with the inevitable overturning of Roe v. Wade that LGBTQ rights could be next. While that is a conversation for another day, it is important to remember that being an open member of the LGBTQ community in our profession is not as mainstream as it should be seven years after the Obergefell decision. The National Association for Law Placement’s (NALP) annual survey on law firm diversity does show improving LGBTQ numbers, but reporting is still very low. Only 3.67% of lawyers responding identified as LGBTQ—the highest the percentage has ever been since reporting on this category started in 2004—a number that remains underwhelmingly low.
Two years ago, Bloomberg interviewed several LGBTQ attorneys for its article, It’s Gotten Better to Be LGBTQ in Big Law, but Struggles Remain, which featured many including Anne Tompkins, the second openly gay U.S. Attorney appointed to serve in 2010. Tompkins recalled in the early 1990s that, “People would say, ‘Too bad you’re gay because you would make a great U.S. attorney, but that would never happen.’” Fast forward to 2020 when the article was published, and these issues still remain as evidence by Toni Lambert, an associate at Orrick, who identifies as a Black queer woman with a nonbinary appearance. Lambert told Bloomberg that she has encountered “a lot of assumptions” about who she is and goes on to say “that people are less likely to engage when they’re uncomfortable, and oftentimes they’re uncomfortable not because they’re actively homophobic but because they’re uneducated in the issues.” With the growing number of transgender lawyers and individuals who identify as nonbinary, we can take certain simple steps to be welcoming and accepting of all of our peers—even if we don’t understand or personally relate. It starts with reviewing your firm policies to remove the him/her pronouns and replacing them with ‘they’ or using the name and pronouns your peers ask for without questioning them as to the (sudden to you) change. And with all things that may be new or different to you, it’s ok to make a mistake but don’t dwell on it or make it a big deal. The legal profession has come a long way since 2001 when Keith Wetmore became the first openly gay chairman of a major law firm, San Francisco’s Morrison & Foerster (and congrats to Peter Michaud who was recently named as successor to Mark Stewart at Ballard Spahr, becoming that firm’s first openly gay chairman) but there is still room for improvement. We should want everyone to express their authentic self and it’s not our job to say what that is.
For those who may be unfamiliar, “neurodiversity describes the idea that people experience and interact with the world around them in many different ways; there is no one ‘right’ way of thinking, learning, and behaving, and differences are not viewed as deficits.” Some of you might think of people with ADHD, autism or Tourette’s syndrome and you would be right, they all fall into the neurodivergent category. In an industry that is as judgmental about where you went to law school as it is about appearance and the likeability factor, being more inclusive of those with neurodiversities should become a priority. While amazing, it shouldn’t have made international headlines that Haley Moss became the first autistic attorney to be admitted to the Florida bar. Like the ABA, that has been exploring and educating on neurodiversity in the law, NALP recently formed the Neurodiversity in the Legal Profession Task Force with a purpose of “reviewing the barriers to inclusion of neurodiverse law students and lawyers including stigma, lack of understanding, and hesitancy to disclose/under reporting.” Similar to others that do not fit the mold of the quintessential lawyer, those who are neurodiverse have talents, perspectives and skills that are distinctly beneficial to the legal field but we need to let them in the door.
Mental Health Awareness
As someone who co-founded a local nonprofit founded after a lifelong friend committed suicide in 2012, I would be remiss to not include another hidden part of diversity—mental health awareness. I hope that all of you are as shocked and devastated as I have been regarding the significant uptick in suicides across the country. From the staggering number of female college athletes taking their lives in the last six months to the shocking loss for many of local personal injury attorney Slade McLaughlin who took his life in April, we should all be worried that the legal profession remains the industry with the fourth highest suicide rates. When I give DE&I presentations, I almost always talk about Gabe MacConnaill, a Los Angeles Sidley Austin partner who committed suicide in his firm’s parking lot in October 2018. His wife, a fellow attorney, wrote an open letter to the legal industry about his passing called, “Big Law Killed My Husband: An Open Letter From a Sidley Partner’s Widow.” MacConaill, presumably like McLaughlin (who I did not personally know), was everything that most lawyers aspire to be: a well-liked, hard worker who was dedicated to his family and a superstar in the legal industry. Yet behind that was the pressures from an extremely demanding job and the feeling that there was no way out. We no longer can sit by and participate in an industry that allows for stigma to be attached to asking for help. Mental health awareness needs to be as critical and important as every other effort a firm undertakes to be more inclusive. Coming off the heels of the seclusion of the COVID-19 lockdowns, we must do our parts in providing employees the resources and support they need for mental health wellbeing—and do so without fear of repercussion or retaliation for making their own mental health a priority.
The bottom line is this: becoming more diverse, equitable and inclusive is so much more than what first meets the eye. We are all unique and different and with that brings so much to the table. Our profession needs to do a better job of making room at the table and shattering glass ceilings than it has done with supporting the old boys club. As more generations grow up, it will be harder for law firms to gloss over the profession’s bad history and not make room for everyone. As I have said many times before, let’s all do our part to get it right.
Reprinted with permission from the May 19, 2022 issue of The Legal Intelligencer. © 2022 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.