Introduction
The legal profession has moved at a slow pace in addressing issues of diversity and inclusion. Reports in the United States and Canada indicate that lawyers of color, lawyers with disabilities, LGBTQ2+ lawyers, and women lawyers (collectively, “diverse lawyers”) are not well-represented in the profession, particularly at the partner level or in leadership or management roles.
The Numbers
The American Bar Association reported in 2018 that 85 percent of lawyers in the United States were Caucasian/white, and 36 percent identified as female. A 2018 Report on Diversity in U.S. Law Firms by the National Association for Placement reported that, inter alia, (i) minority women continue to be the most underrepresented group at the partnership level, (ii) there are wide geographic disparities in the number of LGBT lawyers, (iii) reporting of lawyers with disabilities is scant, and (iv) representation of Black/African-American lawyers among partners has barely increased since 2009.
In Canada, demographic data is not as readily available. The Canadian legal profession has transformed over the course of the current decade; however, diverse lawyers continue to be under-represented. The Canadian Bar Association partnered with the Canadian Centre for Diversity and Inclusion to conduct a survey tracking law firm diversity in Canada. The study reported that women, lawyers with disabilities, and racialized lawyers are significantly under-represented, and there is a continued trend of Caucasian males occupying senior leadership positions.
Challenges Faced in Retention and Advancement
In recent years, law firms and corporate legal departments have improved recruiting and hiring practices, but inclusion and retention must be addressed. Although individual merit plays a key role in advancement, it is not often the reality. Barriers exist in both countries that impede the retention and advancement of diverse lawyers, such as in-group bias, unconscious bias and stereotyping, diversity fatigue, and the lack of a sponsor or champion. In order to increase inclusion and retention, the legal profession must address these underlying issues.
Diversity and Inclusion in the United States and Canada
A true comparison of the U.S. and Canadian experience is not possible given the historical and cultural differences in both countries. Nevertheless, both countries have similar challenges in recruitment, retention, and advancement and can benefit from their respective experiences and strategies. Best practices that can be used in the United States and Canada include:
- Active and meaningful participation and support of senior leadership and management. It is difficult to effect change where those in leadership are not supportive of or active in moving the needle. The involvement and support of senior leadership and management is imperative for having an inclusive workplace.
- RFPs, open letters, and other public support of diversity and inclusion from clients. Genuine strategy must be put in place to monitor outside counsel’s diversity and inclusion efforts and to hold them accountable. Meaningful strategies include a thorough examination of the members of the legal team, the percentage of work allocated to diverse lawyers, and the representation of diverse lawyers in senior positions within the firm. Many large financial institutions require quarterly reporting on these items, which allows them to track the outside firm’s commitment to and focus on diversity and inclusion.
- A concerted focus on inclusion. This includes creating and maintaining a culture and work environment that is welcoming and allows lawyers to bring their full (professional) selves to the workplace.
- Hiring from a broad pool of candidates to recruit diverse talent, and training those interviewing and hiring lawyers (e.g., unconscious bias training).
- Internal accountability measures such as tying compensation to efforts of diversity and inclusion.
- Law schools implementing diversity strategies, such as The Coelho Center for Disability Law, Policy & Innovation.
- Ensuring that diverse lawyers have equal access to advancement opportunities. Challenging, high-profile, and career-advancing files should be assigned based on merit and work ethic, rather than nepotism, as may be the case.
Conclusion
The legal profession in the United States and Canada continue to address the challenges related to diversity and inclusion. Data generated from reports and studies highlight the need to formulate and implement appropriate strategies to address these issues. The initiatives of law firms and organizations in the United States and Canada have played a significant role in the diversity discourse. There are best practices that both countries should draw upon to enhance the recruitment, retention, and advancement of diverse lawyers.
