The unexpected trauma of the COVID-19 global pandemic, coupled with a social uprising forcing Americans to face the realities of systemic racism, has many of us hoping to keep the door to 2020 closed forever. But, in order to truly rebuild in a way that history will not again repeat itself, we need to respond appropriately to the many tragic lessons we learned in 2020. Black History Month, which became a month long celebration in 1976, occurs in the month of February to coincide with the birthdays of Frederick Douglass and Abraham Lincoln. During the month of February we take time to recognize and honor the outstanding achievements African Americans have made to American society and culture. Yet, the fact remains that the legal profession is the least diverse profession in our nation. According to the National Association for Law Placement’s 2020 Report on Diversity, “the representation of Black lawyers in law firms still trails that of Asian and Latinx lawyers.” Although statistics on summer associates continue to show greater diversity among future junior lawyers, and with LGBTQ lawyers of all levels in firms on a continuous rise, it should still give us great pause to know that in the last 11 years “the representation of Black women at the associate level has increased by just one-tenth of a percentage point.” As a profession we are failing and we must do better. So as we jump right into 2021, Black History Month gives us the perfect opportunity to celebrate, reflect and look ahead.
As part of its promotion of Black history in the profession, the American Bar Association has comprised a list of select notable Black trailblazing lawyers. The notable list includes the likes of Macon Bolling Allen, Thurgood Marshall, former President Barack Obama, Haben Girma and Vice President Kamala Harris. The ABA is also currently promoting the “21-Day Racial Equity Habit-Building Challenge©.” Through its Diversity and Inclusion Advisory Council, the ABA is participating in the 21-Day Challenge concept from diversity expert Eddie Moore, Jr. to advance deeper understandings of the intersections of race, power, privilege, supremacy and oppression. While not an exhaustive list as not every firm publicly displays their internal events, a quick internet search reveals that some mega firms have Black History Month celebrations by highlighting the accomplishments of diverse partners and providing mentoring and coaching tools for diverse associates. Firms who need ideas can do such things as supporting the involvement of staff and attorneys in community and civic endeavors, host cultural and educational events at the firm that support local Black owned businesses or a local prominent member of the Black community, have the firm’s newsletter and social media campaigns highlight Black history in the legal profession.
As we celebrate, we must take the time of reflect on where we are today: it’s been less than a year since the highly publicized and tragic murders of several members of the Black community. And while some may feel that those instances are not a reflection of the overall esteemed legal community, we really do not need to look to hard to see why we are staring down the barrel of our own self-induced weapon. The article “Why Women and People of Color in Law Still Hear ‘You Don’t Look Like a Lawyer” gives us the stark reminders of what it’s really like to be a women or person of color in the legal field. It is not uncommon to hear of the diversity tax attached to anyone who isn’t white and male in the legal profession. While invisible these taxes are very real and very damaging to creating inclusive and welcoming environments. “The terms of employment for women and professionals of color often include [performing] added, unacknowledged, and uncompensated labor and to pay additional ‘taxes’ for their inclusion in these social and professional spaces that would otherwise view these professionals’ inherent differences as obstacles to their career advancement,” says the article’s author Tsedale M. Melaku. There is this “need to work longer or harder to get noticed and the pressure to be flawless, because the stereotypical assumption of incompetence leaves little to no margin for error,” which for women and minorities, adds “up to some very real costs of the you-don’t-look-like phenomenon: receiving less pay for equal hours; doing the work but not receiving the credit; encountering difficulty with breaking into social and professional networks; and dealing with the discomfort of white male colleagues,” writes Melaku. Data also suggests that Black and Latino attorneys remain severely underrepresented even at firms that have made strong efforts at diversity. Oftentimes firms can meet diversity numbers goals but they struggle internally to promote within the ranks and have a higher turnover rate for women and minorities. This is a stark reminder that anyone can achieve greater numbers in diversity but you will continue to fail when you don’t find ways to be more inclusive. As Melaku puts it, “How can we lean in to a table when we are not even in the room?”
But in looking ahead, the future of our profession does look bright. We are making strides to being more inclusive and diverse, however it’s long and overdue. We are seeing more and more public initiatives and goals by organizations and law firms to recognize, call out and address DE&I issues in our profession. A small step in that right direction is evidenced by such firms as Hogan Lovells, Reed Smith and Dorsey & Whitney who all now give up to 50 hours of billable hour credit for diversity related work. The Reed Smith program is the first firm to extend such a credit to all timekeepers in the firm. “Building an inclusive culture is integral to our business and should be rewarded and incentivized, not left to chance,” Reed Smith firm managing partner Sandy Thomas said in a statement. And it’s not just the pressure we feel internally to be more inclusive – clients are demanding it more and more. Recently, Coca Cola announced several diversity targets including a requirement that “30% of associates and partners working on each billable matter are diverse, half of whom must be black attorneys.” Those targets also call for penalties for firms who cannot meet those goals over a six month period that includes “a 30% reduction in their fees until they achieve compliance.” Change does not happen overnight, but our profession has been given enough time to change, and it is time we look ahead to how bright our future will be when we make room for everyone.
As one of the most esteemed professions, those lawyers and law firms who continue to choose to ignore the need of inclusion and diversity in their ranks will find themselves left behind. The lessons we learned in 2020 must stay with us so we can truly celebrate the contributions and sacrifices made by all, so we can reflect on the mistakes of others to recognize the need for real change and so that we can look ahead to a better legal industry and a better world – together. In the words of the revered late Martin Luther King, Jr., “the time is always right to do what is right” as “injustice anywhere is a threat to justice everywhere.”
Reprinted with permission from the February 16, 2021 issue of The Legal Intelligencer. © 2021 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.