Greensfelder, Hemker & Gale, P.C.
Over the past several decades, as our society has worked to relegate segregation and discrimination into the dustbin of history, companies have explored ways they can individually move the needle and make their own workplaces attractive to all the talent available to them. While these efforts originally focused primarily on increasing the number of people from historically excluded backgrounds within an organization, firms and organizations have shifted in recent years to considering how to create a welcoming environment for those people once you get them in the door and identifying and removing the barriers that tend to impede their success.
Within the legal industry, purchasers of legal services (large, medium, and small companies) have begun to analyze the diversity and inclusion efforts of their law firm partners with more specificity and depth. In addition to increased diversity within firms, clients want to see improved retention of diverse lawyers, more diversity among the leadership positions at the firm and evidence that the firm adopts policies and practices that increase inclusivity. As clients begin placing more importance on diversity and inclusion efforts when considering which law firms to use for legal services, a firm’s ability (or failure) to meet these expectations will likely impact the revenue a law firm might generate from such clients.
Additionally, as younger generations enter the workforce and societal norms shift, expectations for workplace cultures are significantly different than those of prior generations. A culture of belonging where diversity is plentiful is increasingly important to talented and attractive candidates. Law firms who want to be an employer of choice must consider whether their workplace appeals to the people who will dominate the makeup of the workforce in the years to come.
In response to these societal and industry shifts, over the past ten years, law firms began hiring and/or appointing Chief Diversity Officers (CDOs), executives tasked with leading their internal and external diversity, equity, and inclusion (DEI) efforts. While firms realized the need for a dedicated, senior-level executive that would devote most if not all of their time to leading and executing these efforts, there was little consistency or agreement about what characteristics or traits the CDO should have, what areas of operation fall within the scope of the role, how the role fits into the overall vision and mission of the firm, and how firm leadership would adequately support the person tasked with managing this important yet complex work.
Many of these uncertainties have been resolved as the CDO position has become more common and the range of people successfully operating within this role have become more representative of the diversity of our society. Yet, there are still some organizations that are interested in exploring how they can best implement this kind of role within their leadership. In addition, some organizations have filled CDO positions but are struggling to find success achieving their goals. In this article, we will discuss factors for organizations to consider when hiring or appointing a CDO, as well as some best practices that have emerged as this role has evolved.
Selecting a CDO is an important early step on the journey to creating a welcoming and inclusive workplace, but there is much to consider after filling the position. The work is difficult and complex but also necessary to differentiate oneself and compete in the current legal marketplace. The likelihood of a law firm’s success increases if it is intentional about designing and structuring the role, if they are highly intentional about that person’s integration into leadership and governance within the firm, and if they provide concrete support to the person tasked with this responsibility.
First, a firm that has decided to appoint a CDO must determine whether the role will be held by one of the firm’s practicing attorneys who will also be expected to maintain their legal practice, a non-practicing attorney, or a non-attorney. The firm must also contemplate which type of appointment will garner the most credibility and trust within the organization (and this will vary by organization). Potential candidates can include:
A CDO who already has relationships and familiarity with the law firm is often the best “first” CDO. The person who first inhabits the role will immediately be faced with multiple responsibilities, such as developing a baseline for where the organization currently operates on the DEI spectrum and designing a plan of action based on those factors, identifying allies for the work, and determining how aggressively the firm should implement holistic changes. This first CDO should also understand the fabric of the organization, gauge the appetite for change, and understand how to push and prod so the firm can move forward.
If the firm intends to fill the role with a current practicing lawyer, they must also invest in hiring another non-timekeeper professional to support them. A firm that expects the CDO to maintain their legal practice without additional assistance demonstrates an unwillingness to invest the appropriate level of resources into the position and, ultimately, achievement of stated goals. But if the firm creates and fills a full-time position intended to assist the CDO, it largely eliminates that concern and will permit the pair to use the expertise of an external diversity and inclusion professional while leveraging the knowledge and relationships of the current CDO. It is this cooperation that can generate true momentum to building the culture that the firm is hoping to create.
Alternatively, the firm could hire a full-time CDO who did not previously work at the law firm. While this approach would allow the CDO to work every day toward achieving DEI goals, an external appointee will have a much steeper learning curve and may not have sufficient relationships or understanding of power dynamics within the firm to address challenges, at least during the beginning of their time in a role when time is of the essence. If a law firm hires an external candidate, it will be most successful if the managing partner, CEO, and other members of firm leadership work closely with them in the initial months as they transition into the role.
For many firms and companies, diversity and inclusion have been stated goals for decades. Those same organizations have not addressed the institutional barriers that keep women lawyers, lawyers of color, lawyers who live with disabilities and lawyers who identify as LGBTQ from realizing true advancement and progress in the legal industry.
Nationally, summer recruiting classes are composed of more than 50% female students and more than 30% students of color, reflecting the focus firms have placed on increasing diversity. Unfortunately, only 26% of equity partners in the United States are women and less than 4% of equity partners are people of color. Black women make up less than 0.75% of all equity partners nationwide, and Black men also less than 1%. The numbers are similarly bleak for Hispanic men and women.
At an industry level, traditional law firm structures do not easily accommodate changes that would make firms more inclusive or equitable. They use several supposedly fair and objective indicators to determine whether a person is qualified to work and be considered successful at their firm, such as law school grades, billable hour requirements, and decentralized work allocation practices. However, these indicators have a history of excluding and marginalizing certain demographic groups within firms. Most lawyers, if they are honest, will admit that grades in law school have little to no correlation with how successful one will be as a practicing attorney over a career that will span decades. Billable hour requirements, a seemingly black and white metric of productivity that is most relevant to compensation, bonuses, and success, provide no consideration for the quality of work, whether the work is at the appropriate skill level, or any other context that relates to developing and advancing attorneys. Work allocation, one of the biggest factors related to growth and advancement, is often done in a highly biased manner within law firms, with relationship partners providing quality work to their preferred colleagues instead of being intentional about developing everyone within a practice group.
For these reasons, the firm will only meet its goals if it integrates the CDO (and the equity, inclusion, and diversity work) into all aspects of the firm’s business. They will not make substantive progress on DEI unless and until the CDO fully participates in firm governance, including the management committee or Board of Directors; the compensation committees for partners, associates, and paralegals; and the lateral associate, lateral partner, and summer associate recruiting committees.
If the CDO is integrated into firm management and day-to-day decision-making, a culture of equity and inclusion becomes a reality. Every firm considers the financial impact of management’s decisions regarding new computers and software, who might attend conferences, policy changes, real estate issues, associate working policies, flexible work arrangements, employment decisions, sponsorships, and marketing events. . Integrating the CDO will lead the conversation toward not just financial consequences, but also the impact on diversity, inclusion, and equity and the effects of these decisions on historically excluded groups. Considering the impacts on DEI goals does not mean they will control the decision-making process, but the conversation is necessary if an equitable and inclusive culture is a goal of the firm. If the CDO is not integrated into those committees, though, the conversation does not occur and the culture, ultimately, will remain the same.
In addition, integrating a CDO into firm management leads to subjects not customarily associated with DEI to be examined under an ‘equity lens’. . For example, a conversation about finance and budgeting can bring up questions about why investing in certain types of training or investing in the people in the law firm can result in a more inclusive environment. As firms consider more flexible work arrangements because of the pandemic, those conversations naturally lead toward how to make the workplace environment more inclusive for everyone, especially historically excluded groups that have experienced the pandemic quite differently from the majority. Discussions about compensation can open the door for the CDO to provide context around a particular attorney’s performance and ensure the committee is not making assumptions based upon implicit biases that often result in lower compensation for women attorneys and attorneys of color.
It is usually the CDO’s presence and active involvement that makes conversations about inclusion, equity, and diversity normalized as a part of firm governance, review, and compensation matters. They often interrupt the inertia that tends to happen during high-level decision-making and provide the DEI perspective on all issues, including, but not limited to, policies, practices, reviews, compensation, internal office locations, billable hours, work allocation, associate reviews, compensation, etc. When that perspective is included with every decision, and that voice is heard before deciding the next course of action, the firm inches closer to having a culture centered on diversity, inclusion, and equity.”.
Finally, and perhaps most importantly, the role of CDO can be very taxing. More often than not, a person selected for a CDO role is from an historically excluded group themselves and tasked with implementing significant structural change in an environment that is usually non-diverse, highly traditional, and risk averse. In addition, the work can take an emotional toll that is fundamentally different from other executive leadership positions. There is a toll when one works every day to convince a traditional law firm that their structure and the “way things have always been done” is not conducive to establishing a diverse and inclusive culture and requires change. There is a toll when the talented, diverse associate you have been actively mentoring and supporting gets frustrated with the slow rate of progress and resigns to take a position elsewhere. There is a toll when your partners’ critical comments make it clear they do not take the work seriously or that they do not care if it is even done. There is a toll when you have spent hours designing a presentation that discusses the importance of DEI issues for firm employees and the majority of those in attendance are distracted.
Leaders of law firms must understand the unique nature of this work and the emotional consequences that are endured by the person holding the position and provide support from all angles. They must trust the CDO’s leadership, ensure they have opportunities to be in community with other CDOs and DEI practitioners, regularly communicate their support for the CDO to all firm employees, actively listen to issues related to the structure of the firm that might be creating negative outcomes for historically excluded groups, consider structural and policy changes that will help lead the firm to a more inclusive and diverse culture, and provide assistance if firm employees are not acting in accordance with newly adopted policies.
The CDO is often a beacon for every diverse employee at the firm, and managing those responsibilities while working to undo decades of institutional barriers can be overwhelming and eventually lead to burnout. But if law firms are intentional about creating a CDO role that is effective and structurally sound, integrate the CDO into all aspects of firm governance, and work to mitigate the emotional toll of the position, then the law firm and the CDO can successfully create a law firm with a diverse workforce and an inclusive and equitable culture.
Christopher A. Pickett represents clients from across the country in an array of business litigation matters, particularly in the areas of securities and higher education. In addition to his practice, Chris is a member of Greensfelder’s board of directors and also serves as chief diversity officer, leading efforts to foster an equitable and inclusive workplace. As leader of the firm’s Equity, Retention and Advancement Committee, Chris focuses on growing, retaining, and advancing a diverse group of employees, with a particular focus on groups that have been historically underrepresented in law firms.
Carmen White is Greensfelder’s diversity and inclusion manager. She works to attract, develop, and retain a diverse pool of attorneys and staff and promote an inclusive work environment. Together with human resources and professional development staff, she provides diversity education programs for employees, measures the effectiveness of diversity and inclusion initiatives and assists the firm’s chief diversity officer and Equity, Retention and Professional Development Committee with community outreach efforts.
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