News & Termine

31.01.2019

Gender Diversity: We’re looking at the problem from the wrong end!

US law firm Paul, Weiss, Rifkind, Wharton & Garrison has been on the receiving end of a social media storm (as reported in New York Times 27 January 2019) about its decision to elect eleven white men and one white woman to the 2019 partnership. Even Paul Weiss’ track record of being “more diverse” than the average law firm was not enough to save them. According to The Legal Week, in direct response to Paul, Weiss, Rifkind, Wharton & Garrison and other American law firms failing to promote enough women or minority partners to the 2019 intake, 170 GCs and corporate legal officers signed an “open letter” to law firms stating that they would direct their legal spend to those law firms who “manifest results with respect to diversity and inclusion, in addition to providing the highest degree of quality representation.” Is this the end of the road for homogenous law firms? What does this breaking news tell us?

On the upside

The latest open letter is a vast improvement on the 24 GCs who signed the first letter supporting the adoption of ABA Resolution 113 (which aimed to “facilitate opportunities for diverse attorneys, and to direct a greater percentage of the legal services that GCs purchase to diverse attorneys”). It looks as though GCs (in the US) might actually be able to drive change, or at least are becoming more vocal about the lack of diversity in law firms. This is a significant step forward, especially given that according to a study by the Bucerius Center on the Legal Profession and Dr. Nicola Byok from 2015, gender diversity was not a decisive criterion for German companies, when deciding which law firm to give work to.

The legal press (in the US at least) care enough about diversity to make a fuss when the umpteenth firm elects a majority white-male partnership. In Germany, the recent announcement in the LTO that the top ten law German firms had made up only six women (and fifty men) went relatively unnoticed and merely resulted in the usual insinuations that women “select themselves out” of the partnership race (see LTO 17 January 2019).

On the downside (and this is a big one)

We are looking at the problem from the wrong end. Numbers are not the deciding factor in whether or not a firm is “diverse” – in fact, they distract from the real problem. In 2017 we published an article in the LTO “Gender equality: What is taking us so long?” And the answer? If we continue to define lawyers by their billables and to continue to offer women leadership programs as the panacea for everything, then we will never reach gender equality in law firms. According to a recent study by Dr. Katharina Stüber from Allen & Overy (see LTO 25 February 2017), many firms are wasting too much time on attaining targets of “zero” women.

A quick browse through commentaries and recent gender diversity articles shows that a majority of firms still think the root of their diversity problem is that women “opt out” of partnership. This is a poor excuse. To quote Jordan Furlong from 2013, “women aren’t leaving law firms at an abnormal rate. They are leaving law firms at a perfectly rational and normal rate. It’s men who are staying in law firms at an abnormal rate.” In other words, it’s time to fix the firm and not the woman.

In 2016 we first published “Fix the Woman or Fix the Firm: Why Law Firms Need to Stop Focussing on Gender Equality” in which we argued that firms needed to stop focussing on gender equality and start focussing on operational and structural systems that hamper diversity. Later, in 2017 we made five clear recommendations on how law firms could increase female representation (“Fix the Firm or Fix the Woman? How the demise of the superhero myth would benefit both law firms and their clients”). Not one of these included women’s leadership programs or quotas. Having one or two more women in the partnership just to fulfil the 20% target does not automatically make the firm more “diverse”. Diversity is about accepting other people’s perspectives and values and appreciating everyone’s individual contribution to the partnership and not just about gender, sexual orientation or race. In fact, for the younger generation, diversity is an inherent value which they simple expect to see reflected in the workplace (see for example some of our research on Generation Y).

It’s not the fact that so few women are elected to partnership that we should be concerned about, it’s the lack of commitment to finding out why – except to mumble something about there being insufficient candidates. Sorry, but that’s simply not good enough. If we continue at the current pace, we will be travelling in hyper-loops and eating artificially grown meat by the time law firms become more diverse.


Emma Ziercke and Markus Hartung