Diversity is a yarn, until women of color are woven into the law firm fabric

Most private firm business models continue to adhere to the “pay-your-dues-and-climb-the-ladder” tradition. But regardless how accomplished a woman may be, she cannot climb, much less reach the top of, the leadership ladder unless she spends a certain amount of years in her work environment. Nowhere is this more painfully obvious than with women of color in law firms. 

The statistics are compelling: In 2005, the National Association of Law Placement (NALP) reported that 81 percent of women lawyers of color left their law firms within five years of being hired. Recognizing the need for a comprehensive analysis of the unique concerns and experiences of Hispanic, African American, Native American, and Asian American women in the legal profession, in 2004 the American Bar Association’s Commission on Women in the Profession undertook a first-ever, groundbreaking research study comprised of a national survey and focus groups.

Published in October 2006, Visible Invisibility: Women of Color in Law Firms explores the experiences of women of color who had worked in a law firm of at least 25 attorneys. It answers such critical questions as: Do women of color attorneys’ work experiences surpass or fall short of expectations, and how do their experiences differ from those of their majority colleagues? How do legal employers hinder or increase job satisfaction? Why do women attorneys of color change practice areas and organizations, or leave the profession at an alarming rate?

The report details what has been called a double-bind or “double-whammy.” Women of color experience unique disadvantages based on race in addition to gender. White women experience such events based on gender alone, men of color experience such events on color alone, and white men have virtually no first hand or personal experience with discrimination.

Despite the genuine efforts of law firms to diversify, Hispanic, African American, Native American, and Asian American women lawyers nationwide report a lack of networking and access to significant billable hours, being skipped over for client development opportunities, and being subjected to demeaning comments and harassment. They often feel isolated and alienated, sometimes even from other women.
Among the report’s key findings:

• Approximately 62% of women of color said they had been excluded from networking opportunities, compared with 60% of white women, 31% of men of color, and 4% of white men.
• 49% of women of color said they had experienced demeaning comments or harassment, compared with 47% of white women, 34% of men of color, and 2% of white men.
• 44% of women of color said they had been denied desirable assignments, compared with 39% of white women, 25% of men of color, and 2% of white men.
• 43% of women of color reported having limited client development opportunities, compared with 55% of white women, 24% of men of color, and 3% of white men.
• 31% of women of color reported receiving unfair performance evaluations, compared with 25% of white women, 21% of men of color, and 1% of white men.
• White women earned approximately 2/3 more than women of color, men of color earned approximately 1/3 more than women of color, and white men earned nearly two (2) times the salary of women of color.

The Commission was not alone in probing the reasons for such disparate law firm experiences between women of color and white male or female attorneys. In the November 29, 2006 issue of The New York Times, the newspaper reported on the debate among lawyers as to why blacks lagged at major firms.

One controversial explanation was proposed by UCLA law professor Richard H. Sander in theNorth Carolina Law Review. He argued that the disparity in law school grades between white and minority associates, combined with aggressive minority recruiting, has created an “influx of minority associates who are very often less able, and in other cases, merely perceived as being less able.” He concluded that “it is indisputable that the larger the credentials gap between minority and white associates, the greater the likelihood that a given minority associate will turn out not to measure up.” 

This conclusion elicited immediate response, including comment from the Commission based, in part, on our Visible Invisibility report. The Commission noted that the professor fell into the same trap that ensnares the majority of law firms in this country: He failed to meaningfully consider the neglect, exclusion, and in some cases downright racist attitudes toward women lawyers of color. Sander’s conclusion, roundly rejected by voices in both majority and minority bars, also received a detailed response from James Coleman and Mitu Gulati, professors at Duke University School of Law, in the same North Carolina Law Review. Although there is disagreement about the role of law school grades in the unacceptably low success rate of minority lawyers in law firms, there is remarkable agreement on one key point—a point about which we can do something. 

All agree that the fervor with which minority lawyers are recruited and hired is not matched by an equal commitment to retention and advancement. This is because there are institutional commitments to diversity at the managing partner and hiring partner level that have not yet been fully embraced at the case management level where work assignments and lawyer development take place. Lack of mentoring, uneven work assignments, and inability to fit into closed workplace social networks are just a few of the barriers discussed in all three cited works.

The invisibility of women attorneys of color is not due to a “gap” in credentials or lack of intellect. Most women of color respondents in the survey earned their law degrees from first or second tier law schools. Ironically, most minority women in the study said they were heavily recruited by law firms, only later to be denied equal opportunity to make partner. They were relegated to dead end assignments and treated as “tokens.” One woman lawyer of color said, “I felt like an exotic animal. I was always asked to attend functions and award ceremonies, speak to law students of color and pose for advertising publications. However, I never had contact with partners in power other than at these events.”

There is much to argue about in Sander’s “credential gap,” but what is striking is the overwhelming consensus that law firms are not doing enough to secure the success of minority associates, particularly women. The business world has evolved to better adapt to the changing workforce while the legal profession persists in a model that works for an ever-decreasing majority. Law firms must, among other things, embrace monitoring job assignments, mentoring, training, and breaking down informal network barriers. 

It is now time for the law firm hierarchy to defend their attorneys of color against discrimination. It is not enough for these women to develop a thick skin. Nor is it the burden of the women of color. As stated in the Commission’s letter to the editor of The New York Times (published on December 1, 2006), “It is the job of the law firm to, as the study suggests, weave [minorities] into the social and professional fabric of the firm.” 

Women of color must be visible at all levels within private firms. If the legal profession is to move forward, and if it is to be the best that it can be and reach its full potential, then it must reflect the diversity of society. Anything less is unacceptable.
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Pamela J. Roberts is the current chair of the American Bar Association Commission on Women in the Profession and a partner of Nelson Mullins Riley & Scarborough, LLP in Columbia, South Carolina. She is a former member of the ABA Board of Governors and of the ABA Commission on Racial and Ethnic Diversity in the Profession.