In Honor of MLK

Tomorrow is Martin Luther King Day! I remember as a 1L my professor played a recording of MLK’s “I have a dream” speech, and I was struck by its power and hope: “With this faith, we will be able to hew out of the mountain of despair a stone of hope. With this faith we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day… This will be the day when all of God’s children will be able to sing with new meaning: My country, ’tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrims’ pride, from every mountainside, let freedom ring. And if America is to be a great nation, this must become true.” Sixty something years later, we are still working on the dream, and we legal gatekeepers are not equal ourselves.

A 2018 study of over 2,500 lawyers reported by the ABA found widespread gender and racial bias in the legal profession.

• 67% of women of color report being held to higher standards than their colleagues; 58% of men of color and 52% of white women also feel like the same.
• 53% of women of color report that they had equal access to high-quality assignments compared to 81% of white men.
• 52% of women of color believed they have been given fair opportunities for promotion compared to 75% of white men.
• 70% of women of color say they were paid less than their colleagues with similar experience and seniority compared to 36% of white men. Similarly, 60% of white women reported they were paid less than comparable colleagues.
• 25% of women reported that they had encountered unwelcome sexual harassment at work, including unwanted sexual comments, physical contact, and/or romantic advances.

A 2020 study of 900,000+ executives by Ascend Foundation using 2018 EEOC data found gaping differences in the likelihood of someone becoming an executive due to gender and race.

• White men are 208% more likely than Black men to be an executive, 192% more likely than Asian men, and 97% more likely than Hispanic men.
• Men of all races are about twice as likely to be executives than women in their same race. White men are 165% more likely to be execs than White women, Black men 165% more than Black women, Asian men 112%more than Asian women, and Hispanic men 165% more than Hispanic women.
• Little has changed between 2015 and 2018.

Recommendations by ABA (2020 report Left Out & Left Behind):

• Adopt best practices to reduce bias in decision making. Ask who gets access to what resources/opportunities based on what criteria. Hold people accountable.
• Improve access to (effective) mentors and sponsors. The ABA recognizes women of color often do have mentors, but these mentors usually aren’t effective or influential, so the legal profession needs to go beyond formal programs.
• Do more than recruit for diversity but work to retain diversity. Diverse attorneys “want inclusion, and they often find themselves choosing to sacrifice themselves to anon-inclusive culture in order to meet other personal and professional goals.”

See ABA toolkit from 2018 ABA report You Can’t Change What You Can’t See for detailed ways to interrupt biases in-house. Some highlights:

• Hiring. Decide what qualifications are important, and track if hiring qualifications are waived. Empower people to spot/interrupt bias. Recruit where diverse candidates are, and insist on a diverse pool to choose from. Standardize the interview evaluation process: grade on same scale, ask everyone the same questions (which should all should be performance-based and work-related), ask directly about gaps in resumes. Get a work sample, and be transparent to applicants what you are looking for.
• Assignments. Identify what assignments are office housework vs. glamour work, and who is doing which for how long. To stop office housework, don’t ask for volunteers, use admins, and rotate people. Compensate for valued work (promotions/raises), announce goals for equitable assignments, and rotate assignments. Institute accountability.
• Compensation. Communicate the compensation strategy and benchmark data. Implement pay equity audits under direction of Legal, and address pay disparity discovered. Give low-risk ways for people to address compensation issues.
• Performance evaluations. Use metrics, look for patterns, and empower people to spot/interrupt bias. For the evaluation form, have clear performance criteria, require evidence from reviewers to justify rating and be held accountable, require evidence to be in the evaluation periods (not two years ago). Separate discussions of potential from performance, and separate personality issues from skill sets. Evaluate if you require people to advocate for themselves, and instead of self-promotion, offer alternatives like monthly emails listing accomplishments.
• Sponsorship. Identify top talent, pair with senior level sponsor who is held accountable, and develop goals/milestones for proteges.

Bias in the profession is real. Here’s something that recently happened to a lawyer in California because of the color of his skin (Black lawyer isn’t believed to be a lawyer at the courthouse, gets Tasered, and then gets probation)!