Committee meetings. Task forces. Networking events. Panel discussions. Pipeline programs. Hackathons. Colorado’s legal community hasn’t lacked for events and initiatives to promote diversity and inclusiveness among law firms and the judiciary.
Yet many diversity advocates say that actual progress remains slow in promoting women and people of color in the legal profession.
One indicator is a survey by the National Association of Women Lawyers that found that women comprised 20 percent of the equity partners at law firms last year, which was only up from 15 percent in 2006. That sluggish growth comes despite the participation of attorneys, law firms and other organizations in diversity and inclusiveness initiatives over the past decade.
Miko Brown, a partner at Davis Graham & Stubbs in Denver, said the lack of progress can lead some people to question the effectiveness of certain “D and I” measures.
“I get it — people say, ‘I’ve been working on these issues for 10 years, I’ve been going to these diversity meetings and participating in these diversity committees for 10 years or even longer, and I’ve seen absolutely no meaningful change, why am I wasting my time?’” Brown said. That disenfranchisement is a sure sign of what she considers “diversity fatigue.”
The term diversity fatigue has been cropping up more and more to describe the cynicism professionals and organizations feel toward campaigns to hire and promote more women and minorities. But the term has been used in the legal profession as early as 2010, in a report by the ABA’s Presidential Diversity Initiative.
The report, “Diversity in the Legal Profession: The Next Steps,” pointed out a generational conflict within advocates.
Certain proposals to increase diversity in law will often excite newcomers, while “[l]aden with diversity fatigue, some seasoned campaigners for the cause may carp: ‘We tried these same recommendations back in 1993, and they didn’t work.’”
Diversity advocates who have been involved for years, the report continued, “may complain of diversity fatigue as a response to the continual recycling of issues that had seemingly already been discussed and even resolved.”
Diversity fatigue can come from the “stress and exhaustion of trying to recruit and retain diverse talent” and failing to make significant progress in it, said Jennifer Jaskolka, an assistant general counsel of Xcel Energy who’s long been active in promoting diversity and inclusiveness in Colorado’s legal community. “It’s not seeing the progress you anticipate will result from implementing D and I measures.”
Diversity committees and women’s initiatives, which are now commonplace at law firms, “got a lot of momentum and enthusiasm early on because they were brand new,” Brown said. But over time, diversity advocates can grow skeptical about those programs’ effectiveness, seeing that many firms still have trouble hiring and retaining women and attorneys of color.
It can lead some attorneys to even tune out those initiatives, which means the legal community needs to think of ways to keep those discussions meaningful, Brown said.
RECOGNIZING SMALL VICTORIES
Diversity fatigue can often take its toll because diversity advocates are focused on the larger goals — like pay equity at law firms or a judiciary that reflects the racial demographic of the state population — and the profession’s continued failure to meet them.
“I think people really need to be reinvigorated with some victories,” Brown said. “But how do we do that in the context of these really large global problems?”
One solution is to shoot for, and recognize, the smaller victories in advancing diversity, Brown said. For example, instead of setting the goal of eliminating the gender pay gap at a law firm, attorneys could instead focus on getting more women on the firm’s compensation committee, which is a significant milestone toward that larger goal.
“That is much more doable,” Brown said. “And once you start to get more women on the comp committee, you’re probably going to get pay equity.” The smaller goal comes with more concrete steps that diversity advocates can take, which in the compensation committee example could be finding rising stars in the firm who would support pay equity measures and grooming them for committee seats.
The alternative is spending years and money focusing on pay equity as the primary goal and then being discouraged when the initiative fails to reach it over time, Brown said.
Some other “stepping stone” solutions legal employers have implemented in recent years have included the Mansfield Rule, which some firms have adopted to ensure that at least 30 percent of the candidates they consider for leadership roles are women or people of color.
Jaskolka said that it’s important to track and review diversity metrics in hiring and promotions. Metrics can help firms and companies recognize what progress they still need to make in building more diverse teams of attorneys, but also see where they’ve achieved it.
“We definitely need to celebrate the small wins frequently and out loud,” she said.
SPACES FOR FRANK DISCUSSION
Minority attorneys can feel diversity fatigue out of the frustration that their employers’ diversity and inclusiveness programs aren’t meeting their needs, “or the programs are not actually getting to what the issue might be,” said Sumi Lee, a trust administrator at US Bank.
Lee, who is president-elect of the Asian Pacific American Bar Association of Colorado, said there’s often a disconnect between what the established leadership at a firm thinks will help its minority attorneys advance and what those attorneys really need. What she hears from some younger APABA members is that they want to ask their law firms to cover some of their APABA membership dues or expenses for attending the bar’s national convention, but they’re afraid to ask.
Specialty bars are important for attorneys of color to have a space to meet and talk to each other so they don’t feel as isolated in their work, Lee said. She recalls a national APABA conference workshop where she and other Asian-American female attorneys brainstormed ideas for navigating law firms, like roleplaying how to respond if a firm partner makes an offensive remark. In that setting, she could come up with practical solutions that she might not be comfortable discussing in a firm setting.
“I realized that … there were certain stories that I’d been saving or questions that I had that I was just like, this is the right group to have this conversation with,” Lee said. “This is my safe space to have that.”
But, she added, sometimes law firms don’t recognize minority networking groups as being important to the attorney’s professional development. Diverse attorneys can combat diversity fatigue by having venues where they can be their “authentic selves.” Law firms can support those attorneys’ need for those venues throughout their career, and supporting those outside programs is just as important as having their own initiatives, she said.
“Big firms and employers, what I hope they can see is that diversity is not just a one-time, write-a-check-and-forget-about-it kind of a thing, but it’s an ongoing critical part of professional development [for attorneys of color].”
PUTTING ‘RADICAL’ IDEAS ON THE TABLE
Another reason legal professionals might tune out diversity discussions is they begin to expect a rehash of measures that have been tried before.
“I think there’s diversity fatigue because everybody’s saying the same thing,” Brown said. “You go to these conferences, you read these articles, and no one’s hearing anything new. It’s the same-old, same-old that’s not working.”
Repeating the same ideas and hoping for different results is the definition of insanity, Brown said. “If you’re a trial lawyer, and you lose 10 asbestos cases, you’re not going to try the 11th case the same way. You’ve got to pivot and do something differently because your strategy is not working.”
What would break the mold, Brown said, is if law firms seriously weighed what they’d consider “radical new ideas” that are outside their comfort zone. One such idea is for law firms, when they hire associates out of law school, to ignore or devalue certain “pedigree” criteria like GPA, class rank, law review experience and clerkships. Instead, they could look at other factors — a blue-collar background, military service and varsity sports participation — that can demonstrate the candidate’s grit but are less dependent on them already having privilege.
“We’re wedded to this criteria that we know is not indicative of how you’re going to perform, and that we also know tends to take out diverse and women lawyers” due to various socioeconomic factors, Brown said. But law firms “are afraid of what that would do to their prestige and their ability to get the top clients,” she said.
If firms can try out radical solutions for promoting diversity and see some success, it will open minds to further changes and keep people engaged in diversity programs, Brown said.
Jaskolka said that diversity and inclusiveness initiatives that have been tried before can still find new life. For example, recent shifts in the culture like the #MeToo movement have given antidiscrimination and anti-retaliation policies at firms and companies more heft than they had in the past, as long as those policies are strong and enforced, she said.
“I do think that back-to-basic training and measures can still be effective, [although] those tend to be the ones that have been tried before and didn’t move the needle that much,” Jaskolka said.
She added that young attorneys, who carry with them more expectations of a diverse legal community, can also help previously-tried ideas achieve better results. “I think the new generation is more receptive to that, and they’re going to drive the change.”
— Doug Chartier