DEI in law firms: A reactive or proactive approach?
Dr. Jo Kandola and Stephan Lucks urge a proactive, action-centered approach to diversity and inclusion amidst increased scrutiny in law.
The legal sector has faced increased scrutiny in recent years both from professional bodies and the general public around its record on diversity, equity and inclusion.
We've seen several high-profile harassment and discrimination cases, including that of the Devon solicitor who was advised to stay single and childless if she wanted to get ahead, and a series of studies have unearthed widespread bullying of disabled lawyers within the profession. While law’s defining Me Too moment has arguably yet to arrive, a global survey in 2019 revealed bullying and sexual harassment on a concerning scale and highlighted the incumbent risks of reputational damage, costly pay-outs and body-blows to staff morale, performance and wellbeing.
The business case for diversity and inclusion
The SRA makes a powerful case for diversity and inclusion in its guidance for law firms entitled The Business Case for Diversity, and the benefits for organisations across the board are well recognised.
A culture of inclusion allows law firms to attract and retain a much wider pool of legal talent. Diversity of thought in an organisation makes for more creative problem-solving, and a legal firm with a diverse team will have an enhanced ability to approach complex legal problems from different angles and come up with innovative solutions.
A diverse team will also have a better understanding of clients’ needs and be better able to build trust, as well as possessing the cultural competence necessary for navigating the legal landscape of a globalised world. Market competitiveness, too, can be enhanced by a diverse workforce, with law firms who embrace inclusive values and behaviours gaining a significant edge over their competitors by demonstrating a commitment to equity, diversity and inclusion and social responsibility.
A culture of inclusion also supports higher levels of job satisfaction and well-being, a key concern for high-pressure professions such as law which can see high rates of attrition and problems of burnout. Leaders with an understanding of individual needs and experiences and a culture that supports staff in achieving better work-life balance will be far better-placed to ensure peak performance and retain valued staff.
How diverse is the legal profession?
A 2022 study of diversity in the profession by the Solicitors Regulation Authority (SRA) shows progress on a range of fronts but indicates that women, minorities and marginalised groups are still lagging behind – particularly in larger firms. At a glance
Gender diversity in UK law firms is gradually improving, although bigger firms are still falling behind smaller ones. Women accounted for 61 per cent of solicitors (unchanged since 2019) and 35 per cent of partners overall, while only 31 per cent of partners were women in the largest law firms. Overall, given that large corporate firms account for nearly 70 per cent of the partner population, and that their probability of becoming a partner in other firms is also low, females – and BAME females especially – are significantly disadvantaged when it comes to career progression.
There is a clear discrepancy in the ethnic diversity profile of partners between larger and smaller firms. Only 8 per cent of partners at the biggest firms being from a Black, Asian or other minority ethnic (BAME) background, compared to 23 per cent at firms with two to five partners and 35 per cent at those with a single partner.
- Socio-economic background
Efforts by organisations such as the Social Mobility Business Partnership and cross-firm collectives such as Legal CORE have done a lot to improve access for those from under-privileged backgrounds, and the introduction of apprenticeships will also contribute positively to social mobility. Nevertheless, the legal profession remains the preserve of the well-to-do, with the largest law firms boasting the highest percentage of lawyers who were educated in independent/fee-paying schools – a total of 29 per cent, compared to the national figure of just 7.5 per cent. They also had the highest proportion of lawyers from a professional socio-economic background, at 68 per cent, compared to 37 per cent for the general UK population.
Under-reporting of disability within the legal sector remains a significant problem. While there has been an increase from 4 per cent in 2019, only 5 per cent of lawyers reported having a disability, compared with 14 per cent of the wider UK working population, suggesting that there is a widespread reluctance to disclose by those with hidden disabilities.
The story so far
The legal sector has faced numerous challenges around diversity and inclusion. Key among these is a historical bias in favour of white, middle-class, privately educated males, with structural barriers such as poor-quality education and a lack of access to professional networks, development opportunities and mentors making it difficult for people from under-represented groups to enter and progress in the profession.
As a high-pressure industry with long hours and heavy workloads, work-life balance can often be compromised, leading to high attrition rates, particularly for women and carers.
The good news is that we have seen diversity and inclusion become a higher priority for many law firms in recent years. This has particularly been the case with regards to improving access to the profession, as demonstrated by initiatives such as the contextual recruitment system now used by nearly 50 law firms, including Clifford Chance, Linklaters, Allen & Overy and Baker McKenzie. Progress has also been made by legal regulators towards agreeing principles on tackling counter-inclusive conduct and a growing awareness of remuneration disparities has led to efforts to address the sector’s gender and ethnicity pay gaps. Yet overall progress on diversity and inclusion remains frustratingly slow and patchy.
However, an irony not lost on anyone is that while firms have increasingly been advising their clients on mitigating risks around DEI, progress on tackling exclusive or inappropriate behaviour on the part of their own people has been slow and largely reactive.
Efforts have typically focused primarily on short-term solutions, such as one-off training in response to specific incidents of bullying or harassment, and the primary focus has been on addressing specific individuals’ behaviour as opposed to dismantling toxic working environments.
In the course of our work, we've also seen a reluctance on the part of partners to deal personally with issues of discrimination, bullying and harassment and a general tendency to regard it as an ‘HR issue’ as opposed to something that’s rooted in company culture and for which everyone in the company bears a responsibility.
While diversity training has been widely rolled out across law firms in the UK, its effectiveness has been questionable. Much of what's been on offer to date has done little beyond raising awareness of key issues, with little focus on what people can do to be more inclusive.
Organisations who were early adopters of DEI training – many law firms among them – did so largely out of a need to comply with their obligations under the Equality Act 2010 and had little interest in changing behaviour or creating genuinely inclusive working cultures. As a result, DEI training has often tended to be of the ‘tick-box’ variety, regarded as a burdensome add-on of little real value to the business.
Times have changed, however, and the tick-box training approach has been found increasingly wanting. Recent tribunal actions such as Allay vs Gehlen have shown that putting staff through a one-off DEI training course isn’t going to be sufficient for employers to claim that they’ve taken ‘all reasonable steps’ to prevent discrimination and harassment.
DEI-conscious employers are wising up to the fact that regular, high-quality diversity training needs to be embedded at every stage of the employee lifecycle – and made available to everyone in the organisation.
Behaviour change is key to progress
In order to create a truly inclusive working culture, DEI needs to be part of an organisation's DNA - and this means proactively working to bring about behaviour change at scale. Something that we see currently in law firms is that there is often a low proportion of people who are being held accountable for creating a culture of inclusion – but the truth is that everyone has a role to play, and taking action is paramount.
As business psychologists, we know that behaviour change around inclusion is possible, but we also know from experience that any kind of learning intervention has to reach deep into an organisation and needs to have robust methods of behaviour change built in. Our research shows that individuals are more likely to develop new skills and alter their behaviour when they:
- Have basic knowledge and understanding of inclusion issues.
- Receive personalised feedback and insight into their skills and abilities.
- Get clear guidance on how to develop those areas in which they are weakest, and
- Can measure their progress and see whether or not the changes they have implemented are having the desired impact.
Becoming aware of inclusion issues is the first step to change. Awareness-building training certainly has a role to play here, but enabling people to learn first-hand about the experiences of individuals in the business is also key. Creating opportunities to hear first-hand about the experiences of people from marginalised and minority groups in the company – and in the wider community that it serves – can also help to improve an understanding of inclusion issues. Another example is the reciprocal mentoring programmes used by many law firms to promote interaction and learning between older partners and younger joiners in the organisation, which can help to reduce inter-generational tensions in the business.
It’s also important to get a picture of what’s going on in the firm itself, so gathering qualitative and quantitative data is also crucial – whether that’s through diversity audits, staff surveys, exit interviews or engagement with employee resource groups.
Insight and feedback
As humans, we're susceptible to believing we are better at something than we really are, a phenomenon known as self-serving bias. When asking 200 leaders whether they considered themselves to be ‘below average’, ‘average’, or ‘above average’ at being an inclusive leader, research that we conducted at Pearn Kandola found that 100% of the leaders questioned rated themselves as being ‘above average’ - a statistical impossibility, and an opinion that, perhaps predictably, wasn’t shared by their subordinates.
Unless we puncture our self-serving bias with insight, no one will take accountability for change. Digital diagnostic tools hold a mirror up to our attitudes and behaviours and can give us crucial insights into our self-serving bias.
They can also enable us to identify and target other risks around DEI and see where bias might be having an impact on decisions around hiring and promotion, as well as pinpointing development needs at an individual or team level which can then be addressed either through in-person sessions or through personalised online learning solutions.
In-person workshops aimed at developing inclusive attitudes and skills can also be particularly effective for partner populations who may previously have felt uncomfortable dealing with poor behaviour and tended to pass the responsibility on to HR, empowering them to tackle issues themselves and set the tone from the very top.
Focused and personalised actions
Something we hear frequently in the legal profession is that while people believe that diversity and inclusion is important, they don’t know what ‘being inclusive’ actually looks like.
This is why once we are armed with feedback and insight, we then need to be shown what we need to work on and the inclusive behaviours that we need to start incorporating into our working interactions. This can be achieved through personalised learning programmes that target individuals’ specific development needs and supported by company-wide action plans that embed inclusive behaviours and values at every level of the organisation.
The final stage of the process is being able to gauge progress and measure impact. Things like behaviour and attitude shifts can be very hard to measure, as can the impact of inclusive behaviours, but digital tools and data analytics make it possible to measure these and aggregate useful data across an entire organisation.
This in turn enables law firms to gather crucial information to inform their equality, diversity and inclusion strategies, support their employees’ professional development and ultimately improve the service they are providing to their clients.