DARE TO CHANGE A DECADE CONSTANT: The Need To Increase Black Lawyer Representation in the Profession is Long Overdue
As Black History Month comes to a close, and even as we continue a reflective look in the review mirror of 2020, what is revealed are collective lessons. Lessons learned not only from the disturbing and violent deaths of George Floyd, Breonna Taylor, and Ahmaud Arbery, among other Black Americans who were killed at the hands of law enforcement but also from the civil unrest that followed. These events have forced the United States to confront structural and systemic racism throughout society. As society confronts these issues, the legal profession must also confront its own unique challenges.
The legal profession continues to reflect a lack of significant progress in outcomes related to overall increased diversity and inclusion. Implicit bias, outright discrimination and disparate treatment have impacted and halted efforts to increase diversity for years and yet persist.
As a woman and black attorney, I constantly reflect on the lack of representation and leadership that looks like me. I believe that the failure to put intentional efforts into changing these numbers is a failing on all members of the legal profession. Interrupting the trend requires the will to force forward knowledge, information and processes that will help us improve representation of attorneys of color.
With the unavoidable truth of where we stand as a collective... I dare you, change a decade-long constant of only 5% of black lawyers in the profession. Do something you have never done to press for change and increase representation and advancement. We all add a valuable piece to this challenging profession-wide puzzle – add yours in the right direction.
The Statistics for Attorneys of Color Have Been Stagnant for Over 10 years
In 2020, the American Bar Association (ABA)'s Profile of the Legal Profession ("ABA Profile") collected data revealing that African-American attorneys represent just five (5%) percent of all attorneys in America. According to the U.S. Census Bureau, African-Americans make up approximately thirteen (13%) percent of America's population. Black attorney representation, at an amount of five (5%) percent, has remained unchanged for the last ten years. The North Carolina State Bar reports that of the twenty-two (22%) of African-Americans that make up its total population, only nine (9%) percent are lawyers while eighty-six percent of its lawyers identify as Caucasian/White.
White men and women are still overrepresented in the legal profession compared with their presence in the overall U.S. population.1 At the same time, people of color remain underrepresented in the legal profession compared with their presence in the U.S. population. In addition to the African American percentages outlined above, five (5%) percent of all lawyers are Hispanic (up from 4% a decade earlier) although the U.S. population is 18.5% Hispanic and two (2%) percent of all lawyers are Asian (up slightly from 1.6% 10 years earlier) while the U.S. population is 5.9% Asian. Native Americans, however, are represented in the legal profession at roughly the same proportion as their presence in the general population: less than one-half of 1 percent of all lawyers (0.4%) are Native American while the U.S. population is reportedly 1.3% Native American. Additionally, the ABA's Profile reveals that the number of mixed-race lawyers is slowly rising based on data that was initially captured in 2014 and in 2020 which reflected two (2%) of the total attorney population.
Intersectionality: Women of Color Face Multiple Challenges in the Legal Profession
The legal profession's insistence on tradition and uniformity overlooks the innate differences that exist among its diverse members. Particularly its members that fit within the intersection of racial and gender minority – the woman of color.
In 2020, the ABA's Initiative on Achieving Long-Term Careers for Women in Law released its second national study: Left Out and Left Behind: The Hurdles, Hassles, and Heartaches of Achieving Long-Term Legal Careers for Women of Color ("Left Out and Left Behind" or the "Study"). The ABA's Left Out and Left Behind study surveyed 103 self-identified women of color who were practicing law, or employed in law-related positions, asking a series of questions to elicit narratives of their experiences as women of color practicing law.
The Study provides empirical data and discussion about what it means to be a woman lawyer of color: the general experience of practicing law; how work, family, and personal dynamics influence career trajectories; the barriers that women of color confront not simply on an occasional basis but throughout their careers, even after achieving a level of success; and an overview of the factors that either drive women of color out of the profession or encourage them to stay.
The Study notes that women of color comprise 15% of all law firm associates, but the percentage of law firm partners who are women of color remains below 4% percent. Attrition rates for women of color is the highest among all demographics surveyed. In large part, this is attributed to firm cultures where contributions or efforts of women of color fail to be sufficiently recognized or rewarded. These disparities demonstrate that, while opportunities for elevation may be equal, the tools and resources necessary for women of color to advance in their given profession are not always administered equitably.
Equal Opportunities and the Availability for Equitable Opportunities
Essential to an understanding of how to meet goals of increased representation of attorneys of color is the understanding of the differences between equal opportunities for marginalized groups such as women of color and the availability of equitable opportunities for marginalized groups such as women of color. Equality focuses on ensuring everyone has the same resources while equity focuses on tailoring those resources to the needs and circumstances of specific individuals or groups to achieve an equal outcome. The George Washington University says, "[e]quity recognizes that each person has different circumstances and allocates the exact resources and opportunities needed to reach an equal outcome." The following video, less than four minutes long, provides a useful overview of the differences between equality and equity, with a reflection on their connection to fairness:
To achieve the pressing goal of inclusivity and retention of the most underrepresented sectors of our profession, we must accept the challenge before us all to implement equitable practices that allow for increased representation in the profession, thereby increasing the odds for increased retention of high-attrition populations such as women of color.
Driving Force: Retaining Women of Color in the Legal Profession
Even in the face of the adversities rampant throughout the legal profession, the ABA's Left Out and Left Behind study participants shared some of the benefits of their career such as love of the law, opportunity for problem-solving and the helping nature of legal work. They also shared that the opportunity for a professional salary is a driving force to remain in the profession. First-generation lawyers and lawyers of color carry more student loan debt coming out of both their undergraduate and law degree programs than their white peers and this data point continues to increase. 2 This disparity will continue to put additional pressure on first-generation lawyers and lawyers of color in particular to pursue legal positions where earning potential is higher, particularly Big Law jobs, although these higher-paying jobs may be exactly the environments that are the least welcoming to these same lawyers.
The stories of the Study's participants' evidence that when the legal profession fails women attorneys of color by allowing bias, microaggressions and inequities in the distribution of resources, support and opportunities for growth to continue, everyone loses. The profession loses the valuable resource of individuals who are passionate and talented, which results in more favorable outcomes for clients and more positive and collaborative work environments.
How Can I Provide Support to Women of Color in the Legal Profession?
The ABA's Left Out and Left Behind study provides information, which if analyzed provide areas to hone in on as opportunities for unique ways to support women of color in your community.
The Study found:
- women of color were more likely to be single than white women lawyers (43 percent vs 32 percent);
- women of color reported having different needs and challenges that did not fit law firm expectations about family obligations and life outside the law firm;
- women of color were more likely than white women and men to report having extended family responsibilities;
- black women in particular were more likely to report that participating in community activities was a personal responsibility;
- women of color were less likely than white women to use a babysitter for childcare;
- women of color were least likely to cite a spouse/partner as a resource for childcare compared to white women and men; and
- women of color were also less likely to employ service providers for domestic help compared to white women.
With the above backdrop, ask the real questions that would impact the life of a woman of color in your community. What can I do to accommodate, support, and understand the perspective of my woman of color colleague? What policies or amendments to current policies can be made to accommodate some of the data-driven cultural differences that negatively affect women of color? Are there resources internally or that I have made available specifically for women of color professionals that will support them as they navigate the profession from their unique footing? Then, irrespective of the difficulty, make the change.
Clients Care About the Diversity Data
General counsel and executives across the country are paying closer attention to diversity when making hiring decisions for outside counsel, as they work internally to diversify their workforces and in-house legal teams. Now more than ever, in-house legal teams have the technological resources to track and measure the diversity of their outside counsel, alongside performance metrics, such as results, efficiency and cost effectiveness. Clients have begun to exceed merely tracking outside counsel diversity but have elevated to holding outside counsel accountable by rewarding and penalizing law firms and individual lawyers based on their Diversity and Inclusion scorecard.
Beyond the benefits directly from firm to client, there are benefits to-be-gained from partnering with clients on diversity and inclusion efforts such as: sponsoring CLE programs for in-house legal departments; assisting clients with establishing their own DE&I initiatives; developing a programs to allow diverse interns opportunities to split their summer between the Firm's offices and a client's office; creating initiatives that focuses on guiding, supporting and advocating for minority-owned businesses; collaborating on pro bono efforts; co-hosting legal clinics; sponsoring diverse law school and professional organizations; and through partnerships to support diverse suppliers in case management.
Consider These Parting Thoughts:
- Press for more equity in the legal profession and remain open to the sometimes uncomfortable conversations that will accelerate this goal.
- Touch base with colleagues who are women of color. Learning more about each individual woman of color will help firm leadership determine whether these members of the team feel included, have needs, unaddressed concerns, and what can be done to keep them engaged, noticed and included.
- Ensure sponsorship of women of color. Sponsorship, unlike mentorship, directly matches diverse attorneys with senior attorneys who possess long-term success at the firm and have a direct focus on business and client development – essential to a woman of color's success in a law firm setting.
- "Diversity" and "inclusion" are different. Diversity and inclusion initiatives should be focused not only on the numbers or recruitment (i.e., diversity), but also on creating workplaces that ensure the retention of women of color by, for example, ensuring they are invited to engage, are given key roles, and their ideas and suggestions are considered and implemented by firm leadership.
- Hold leadership accountable for diversity and inclusion efforts. We measure what matters. Evaluations and compensation decisions should account for measurable efforts by senior attorneys and leadership to advance the careers of women of color.
Lawyers have never stood unskilled before a challenge. We uniquely possess the qualities to enact overwhelming change in our societies. Collectively, we engender ideas and creativity that provide access, protection and opportunity for so many.
It's the knowledge of the existence of these qualities, rampant in our profession, that force me to stay hopeful that together we will change the color of the profession. We can birth a more complete image of who is a part of the legal profession. One that is representative, equitable and beneficial for all of us. Do your part, I dare you.
1 See ABA's Profile of the Legal Profession (2020).
2 See e.g., Black-White Disparity in Student Loan Debt More Than Triples After Graduation (2016), available at https://www.brookings.edu/research/black-white-disparity-in-student-loan-debt-more-thantriples-after-graduation.
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