The future of DEI programs in the legal industry

Episode Notes

Transcript

Speaker 1:

Welcome to the ABA Journal Legal Rebels podcast where we talk to men and women who are remaking the legal profession, changing the way the law is practiced, and setting standards that will guide us into the future.

Victor Li:

The legal profession lacks diversity in other news, the sun is hot. Law school is expensive, and junk food is bad for you. Not to be facetious, but the lack of diversity when it comes to race, gender, sexuality, disability, and social class within the legal profession is nothing new. However, the last decade has actually marked a gradual increase in diversity across all fields. For instance, according to the most recent ABA profile of the legal profession, while women only make up 39% of the lawyers in this country, despite being over 50% of the population, that percentage is actually an increase compared to where it was 10 or even 20 years ago. Meanwhile, racial minorities only make up 20% of the lawyers in the country, but that’s also an improvement over 10 years ago when it was only 11%. And there are similar trends when it comes to sexual orientation and disability.

However, diversity, equity and inclusion programs, or DEI, for short, have come under attack lately. Last year, the Supreme Court struck down affirmative action programs and college admissions and several groups have started challenging the legality of DEI programs at law firms and companies. Are we looking at an undoing of all the progress that’s been made over the last few decades to make the legal profession more diverse? My name is Victor Li and I’m assistant managing editor of the ABA Journal. My guests today are Lisa Kirby and Kavita Ramakrishnan of Diversity Lab. Lisa is president of Inclusive Talent Systems there. While Kavita serves as Mansfield role and knowledge sharing senior director, they’re here today to talk about diversity in the legal profession and where DEI efforts might be heading in this post Harvard landscape. Welcome to the show.

Kavita Ramakrishnan:

Thank you so much.

Lisa Kirby:

Thank you. That’s great to be here.

Victor Li:

Yeah. So obviously I just gave very, very quick elevator version of your bios, so can you tell us a little bit about yourselves and your backgrounds, maybe Kavita first and then Lisa.

Kavita Ramakrishnan:

Sure. So I grew up in a small town in Massachusetts and I practiced law for about 10 years. I first practiced at a large law firm and then a mid-size firm. And part of the reason I went to law school is I cared very deeply about fairness. That’s something that’s mattered a lot to me throughout my life and as many other people care about it as well, I’m sure. But I decided to actually transition to work at Diversity Lab with my colleague Lisa, because I realized I was more interested in the way that the systems that we were working in were unfair, the lack of fairness in those systems themselves versus trying to play within that system and create fairness there. So I found myself a diversity lab in order to try to fix those systems.

Victor Li:

And Lisa?

Lisa Kirby:

Sure. Hi. Like Kavita. I am a recovering lawyer now, about 25 years of experience in the legal field. I started out as a practicing lawyer in two large firms and then worked in talent and diversity for many years at another large firm. And I’ve done a couple other things in the legal field, but I’ve been at Diversity Lab now for eight years, and I was drawn to work here because it was a really inspiring opportunity to work with our founder and CEO, Karen Rick Stacy, whose career I had followed for a long time, and to work on actually making a difference in some of the same systems and issues I had experienced personally and observed in my prior law firms.

Victor Li:

Gotcha. I think we all kind of use that recovering lawyer term, but to kind of piggyback off that, I mean you talked a little bit about this in just now, but what made the two of you decide to just devote your professional lives to promoting diversity in the legal profession? I mean, there are all kinds of things you guys could have done to help better the lives of lawyers or to improve conditions or whatnot. What made you focus on that issue specifically?

Lisa Kirby:

I’d always been interested in issues of equity and fairness throughout college law school, and when I was practicing, I was very aware of differences in the way people were treated. I also had the opportunity to practice at two very different large firms and experienced how the differences in culture affected diversity. It was in the leadership specifically. One firm had very few partners that were not men or were not white. It had a very different culture than the other firm, and that was really interesting to me. It’s just always been something that I have noticed and been aware of. I was raised by a mom who was a very devoted feminist and taught me about these things from the time I was young and really encouraged me to be aware of the differences and the way that women and men were treated and also underrepresented individuals and others.

So it was something that I’ve just always had a radar about, and I was always involved in mentoring and other initiatives at my firm. So that was sort of my initial involvement. And then when I started working, I worked at Goodwin in the professional development team and helped support the diversity committee and helped launch the women’s initiative there. And from there started to do a lot more research and became much more informed about the data side of it and statistics. And so that kind of filled out my understanding of my sort of personal anecdotal experience and what I knew generally about the workplace and equality and fairness. So I started actually doing the work to promote equality and fairness and gender equity and racial equity through my work on those, with those teams and committees and partners. And so when I found out about Diversity Lab when they launched the On-Ramp Fellowship before I joined, and I just thought that was an absolutely brilliant idea.

It’s a reentry platform for people who have taken time away from practicing. 72% of people that take a hiatus are women from practicing, and they do sometimes struggle to get back into full-time practice. And so it was really inspirational to me because I had been spending years working with these groups and just reading a lot of statistics about how the legal profession was so slow to diversify and was so not inclusive. And the stats were similar year after year and a little bit depressing. And I saw that the on-ramp fellowship was a new innovative idea that was taking action to change the status quo. And I thought it was so exciting. And then when I saw a job opportunity come up here, I realized this is a place I want to be because it’s where we’re actually taking action and testing out solutions. We’re all aware of the problems, they’re longstanding, and at this point very well documented, but we are oriented towards testing out and innovating new solutions. So I think that describes my career path a little bit more in depth and why I decided to come to Diversity Lab.

Victor Li:

Gotcha. And did you want to add anything, Kavita?

Kavita Ramakrishnan:

Sure. Very similar to Lisa. I think this the idea of DEI and creating a world that understands differences amongst people and really respects them, that’s something that’s been on my radar since childhood as well. I think I’ve always been very interested in the difference between how you might feel as an individual and how you might be perceived externally and how that can lead to people treating you differently either in very innocuous ways, whether it’s you’re left-handed versus someone assuming you’re right-handed or something that can be more insidious. It leads to discrimination or harm. I think that conflict has always been something that’s really resonated with me personally. And so in college, I was involved in a lot of groups that were trying to raise the voices of underrepresented groups. And in law school I was a critical race theory. I specialize in critical race theory, and I practiced law thinking that I could fight for fairness that way.

And maybe I was thinking, I think ultimately maybe I’d want to become a public interest lawyer. But I realized that the actual systems that we were fighting within, I was far more interested in addressing the deficiencies there than in trying to fight within what I felt was a broken system. And so I found myself trying to figure out, once I left big law, how do I find a job that allows me to feel like I’m making systemic change? And I got extremely lucky in the process finding out about Diversity Lab. They came on my radar as an organization that cared deeply about making actionable change to creating more inclusive work environments that is fully based and data-based, innovative. And actually we partner with law firms and legal departments and that are actually interested in doing this work with us and all of those aspects. And being able to work with brilliant people like Lisa and our CEO and founder Karen ler Stacy was just a wonderful opportunity that seemed to align my core interests from childhood with my professional path.

Victor Li:

Gotcha. So lemme ask about, obviously having covered this for a little while, I’ve seen pipeline programs for diversity initiatives, mentorships, client mandates and whatnot. How successful would you rate these as far as helping to diversify the legal industry?

Kavita Ramakrishnan:

So I think that diversity programs take a number of different forms. I don’t think any one diversity program, DEI initiative is going to fix everything. When we’re talking about DEI, we’re talking about creating fairness in a variety of systems, whether it’s recruiting, whether we’re looking at promotion, whether we’re looking at equal access information, it takes many, many, many different forms and it kind of requires a whole bunch of different interventions in order for things to become more equitable and inclusive. So I think each of those programs have their place, and in each of those cases, you want to make sure that there’s accountability, there is an opportunity for iteration, there’s an opportunity to look at what’s working and what isn’t. Each of those programs can work if there are proper structures in place and they can work for particular purposes. I think my take on this.

Victor Li:

Gotcha. So I had mentioned the Mansfield rule very briefly in the intro. Could you explain what is it and what does it obligate people to do if they sign onto it?

Lisa Kirby:

Sure. So the Mansfield Rule asks law firms and legal departments to consider a certain percentage of candidates for leadership roles, promotions, and senior level. And it also asks organizations to be more transparent about how to get into these roles and what is the pathway to leadership in your organization, how does it all work to kind of demystify all that and eliminate the sort of phenomenon that tends to happen where an in-group tends to be more plugged in or more aware of how it all works, especially when it’s more of an unwritten rule or unwritten policy. And then an outgroup, whoever is not in the majority, does not have the same access to all that kind of inside scoop. So it’s transparency and then considering a broader talent pool. So it’s intended to open the door wider to leadership and ensuring that opportunities for advancement are inclusive.

Everyone. And how it came about is Diversity Lab pulled together a hackathon, the first ever legal hackathon, it was the Women in Law hackathon in 2016 at Stanford Law School. And the idea was to bring together over 50 law firm leaders and DEI experts to hack solutions to gender equity and the law. The same idea I was talking about before, where it is an issue, there was an issue of women being slower to advance into leadership in the profession. At the time, I think women were either 16 or 18% equity partners when they had been half of law school classes for over a decade. So there was a discrepancy there, and it’s something had been talked about for a long time and there were some programs to try to address it, but the needle hadn’t really moved. So that was the idea of the Women in Law Hackathon.

One of the winner of the crowd favorite award was the Mansfield Rule at that event. And we at Diversity Lab took the sort of shell of the idea, which was the consideration of 30% and expanded it further into a fuller framework and added the transparency element. And we were very fortunate that many of the firms who had participated in the hackathon were willing to give it a try and test it out with us for the inaugural pilot in 2017. So that’s how it came about. Trying to think if there’s something, I feel like there’s something I’m leaving out, but Oh, I should clarify though. This was the Women in Law hackathon, but we expanded the Mansfield role from the beginning to include underrepresented racial and ethnic groups in the law because there is, if you look at the stats, it’s also the legal profession has also been very slow to diversify at the leadership levels. Although law schools have reflected more or less the diversity of the population for 10 to 20 years, depending the specific demographic group. The leadership has remained very not diverse and even still to this day, although some progress has been made, so especially in the last few years.

Victor Li:

Gotcha. Alright, so before we continue, let’s take a quick break for a word from our sponsor and we’re back. So let’s talk about the elephant in the room. Students for fair admissions versus Harvard was the culmination of a long battle against affirmative action in college admissions. And then some groups immediately seized on that ruling that then challenge diversity initiatives and employment including at law firms. So how has the legal sector reacted to the ruling and some of these challenges?

Kavita Ramakrishnan:

So we can talk about, I think what we’ve seen with the firms that we work with as part of the Mansfield role and what we’ve seen there actually has been quite heartening. They’ve really looked at what that case actually says, which it actually, the case does not directly impact workplace initiatives since it was decided as part of college admission. So it’s in the educational sphere. But they looked at that ruling and they took it very seriously as they should, but recognized that it didn’t have an immediate impact on their workplace DEI initiatives. And the risk really comes from people trying to take that case and make it applied to the workplace, which there have been multiple attempts at people trying to do so over the past year and firms are trying to prepare for themselves for that. Specifically let’s trying to shore up what their existing DEI programs to make sure that they can withstand any attacks that might be coming or at least as many attacks as possible going forward. But the big picture being that they are really digging deeper into their DEI programs, continuing to participate in Mansfield and really reaffirming their commitment to engaging in DEI work amid this particular challenging time, which is really, I think a good sign.

Victor Li:

And what is the current status of the Mansfield role? Is it going to be modified or changed at all, or do you feel confident in its foundations that it would survive any kind of challenge?

Lisa Kirby:

Well, we’re not lawyers, so we can’t speak legally. We’re no longer lawyers, but the Mansfield role has always been within the bounds of the law. It is does not mandate quotas or require talent decisions to be made on any basis that would be legally invalid. It’s just about opening the door wider and broadening the talent pool for consideration for different positions and ensuring opportunities are inclusive. So it was lawful when it was established. Actually, the team that I mentioned, the women in law Hackathon, the team that created the Mansfield rule included some labor and employment lawyers, and it has been blessed subsequently by teams of labor and employment lawyers as well. And it remains lawful today. So it’s functioning well, it’s functioning as intended, and we have no plans to change it. As Kavita mentioned, the law firms and legal departments participating have remained steadfastly committed as well, and recognition of the fact that it is very effective in making things fair and more inclusive and that it remains completely lawful. So no plans to change it, although we do, I should say we update the Mansfield rule every year to make sure it’s functioning as effectively as possible. But that’s just part of our approach, which uses design thinking principles to test things out and then iterate as needed. But nothing related to all of this sort of legal circus around in the educational context.

Victor Li:

And just kind of talking generally, obviously there’s an undercurrent or perception here that the idea that DEI lets an unqualified or inferior candidates at the expense of qualified ones. So what are ways that you can combat or change that perception?

Kavita Ramakrishnan:

Well, with the statement itself, I think there are a number of assumptions underlying that particular perception that need to definitely be addressed. The first, I think, is the idea that if a candidate is underrepresented in some way, that they are unqualified or inferior. That’s the underlying sentiment in that particular question, which is itself is problematic, as well as the fact that the idea that the current system is fair and that it’s working. And I think that first part, by addressing that, that issue can go a long way. Just talking people through the details of this system that people assume is leading to a meritocracy DEI is intended to ensure that there is fairness and that this idea of meritocracy is indeed a meritocracy. People that are actually most qualified are being able to move forward versus people who are less qualified. That’s ultimately what DEI is trying to do.

They’re completely compatible ideas and the idea that talking to people about the systems that are in place and the fact that let’s think about hiring. We are hiring from certain pools of individuals. We are only looking at X, Y, and Z places. Then when we bring them into the fold, we ask them these types of questions and based on why criteria, we decide we’re going to move people onto the next level. And if you talk to people on how the way that actually works and whether there are thoughtful, intentional decisions being made about where people are looking for candidates or who’s getting promoted, things like that, I think people really understand the idea that there might not be as much thought being put into a lot of these systems as they originally thought. It might not be as much of a quote meritocracy as they think as they originally thought.

And I think breaking all that down and breaking people to realize that these systems could be better and they could be better, not just in a vacuum, they could be better for everyone so that they themselves can actually move forward as well. That can be one way to get at things. And then also just generally the idea of helping them realize that there are very people from all different backgrounds can be brilliant, and the fact that they don’t exist in that person’s particular experience for whatever reason doesn’t mean that they don’t exist. So addressing the larger issue of people’s lack of exposure to people of different backgrounds that might bring value to the table, those are, I think, at least two ways to start addressing the issue. But the issue, again, being about DEI being about fairness and making people realize that this is ultimately about making sure that people who are the most qualified are actually getting the opportunities that they deserve. I think that idea of fairness really does resonate with the average person regardless of their background.

Lisa Kirby:

I think too, if I could just add something, I think that mathematically, statistically, if you have a larger candidate pool, you’re going to have more qualified applicants or candidates, not less so I think by, it’s a mistake to start with the premise that having a narrower candidate pool who is often in the legal world, and not just to pick on law firms mean, so there are other industries that are like this, but where a lot of hiring, especially lateral hiring or lateral partner hiring is based on somebody’s organic network and who they happen to know, which is constrained by a set of their specific circumstances, where they live, the places they go, the activities they partake in. And so by expanding that a bit and adding some deliberative thinking to it, so just adding some processes, Kavita was talking about the systems that are in place.

And I think one issue with them is that a lot of the hiring practices are more informal and organic. And we know from decades of research that more informal fast moving processes tend to allow in more bias. And so we know from, there’s a book called Thinking Fast and Slow by a Nobel Prize winner, Daniel Kahneman, who recently passed away. But in his book, he talks about how fast thinking is just, that’s your instinctive reaction to things, and it just tends to have more cognitive biases, not necessarily prejudice against a particular group, just cognitive biases that are brains employed to help us move through things quickly. And it’s helpful when you’re driving and trying to avoid getting in an accident. It’s not so helpful when you’re considering who is the most qualified candidate for something or whether you’ve brought in a broaden up candidate pool.

So the idea of adding a little bit more deliberative thinking to, for example, the hiring or promotion process actually means that everyone’s making sure they’re broadening their field of consideration and making sure they are looking at the most qualified pool of candidates rather than just who comes to mind most quickly, which is often who you spoke to most recently or saw most recently. It’s called recency bias or who you sit near or who you live near, which is proximity bias. All of these things come into play when we’re, we’re not engaging in deliberative thinking. So I just wanted to add that comment.

Victor Li:

Gotcha. Alright. So let’s take a quick break for another word from our sponsor and we’re back. So if I have a law firm and I want to craft A DEI policy that could withstand a potential legal challenge, but also just one that you think would be very effective in helping to address some of the structural issues that you mentioned earlier, how would you recommend that I go about doing that?

Lisa Kirby:

Well, since we’re not lawyers, practicing lawyers, we can’t really give legal advice on that. So I would say

Victor Li:

This is more business advice.

Lisa Kirby:

I mean, I do think a good DEI policy, putting aside the question of withstanding a legal challenge, a good DEI approach definitely has accountability and structure built in. I think one of the shortcomings of many, well-Intentioned DEI policies or game plans is that they tend to be big on ideas and exciting announcements and developments, and they tend to be delivered with a lot of hoopla and genuine excitement, but they tend to fizzle sometimes when there’s a lack of accountability and structure built in. So people’s priorities shift around all the time In law firms there are also many other very important things top of mind for people. They’re serving clients, there’s other urgent issues that arise. And so if there’s not a structure and an accountability guardrail built in, then I do think that a lot of DEI policies tend to slip people’s minds and tend to sort of slowly fizzle out if there’s no built-in way to keep them top of mind for people.

And there are a lot of great ways you can do this. I don’t want to just harp on the Mansfield rule. I will just say that that’s in line also with some of the behavioral science I was mentioning earlier, that to really make a change, an organizational change stick, you need to build in an accountability piece and a way to make it sustainable and keep it top of mind. We all know that New Year’s resolutions tend to go by the wayside after once January turns to February, and our minds kind of tend to drift to other things. So it’s the same idea. You need to build in something such as third party accountability or group accountability, which is one function of the Mansfield rule is that everyone’s certified every year. It keeps them accountable. It’s not just a form you fill out at the end of the year, though.

It’s a ongoing, rigorous collaboration with monthly meetings and regular check-ins and surveys with diversity labs. So the firms are accountable to the other firms and to diversity lab. Again, there are other ways to construct this. So I don’t want to say the Mansfield role is the only way or should be the only piece of A DEI strategy, but I just want to highlight that a couple of reasons why I think it’s effective and that I think those elements should be built in to a firm’s approach to DEI. And the other thing I’d say is to start small with the Mansfield rule, we did start small with all of our projects. We tend to start a little bit small and do a pilot with a smaller number of firms, and we don’t build in every single bell and whistle. And I think that firms tend to want to conquer the world in one fell swoop where I think it’s better to start with one or two achievable goals in your first year, and then map out a plan to build towards and work towards your added goals. If you cram everything in there all at once, whatever you’re trying to do will probably collapse under its own weight. So I think that would be my other piece of business advice.

Victor Li:

Gotcha. So can you talk a little bit about the role that clients can provide? I mean, some companies have been historically been very active in pushing for diverse teams of lawyers to represent them on certain matters. What’s a way to encourage more clients to start doing this?

Kavita Ramakrishnan:

I think clients really have to, there are a lot of clients that really see the value and having more diverse teams. I think we are very lucky to work with a lot of legal departments as well as law firms that are dedicated to, they view their outside Counsel as sort of extensions of their own organization at some level. So the Dhir I commitment that they have, they want their outside Counsel firms to have as well. And I think that needs to happen in the realm of asking people to and telling their outside Counsel teams as part of working with us, you need to show us that you are dedicated to making actionable change within your own firm. I don’t know that you can force an organization that’s not already doing that to take that seriously, but I think what we are seeing is that more and more companies are seeing the value that having working with outside council, that have diverse teams makes, I mean, they’re more likely to bring more innovative solutions to the table to have more productive discussions. It is something that is at top of mind for a lot of organizations.

Victor Li:

And to wrap up, if our listeners want to get in touch with you, what’s the best way to do that?

Lisa Kirby:

They can go to our Diversity lab website. They’re welcome to email me. I am at [email protected]. We have very easy email addresses to remember, so happy to hear from anyone who’d like to learn more,

Kavita Ramakrishnan:

And I’d be happy to be emailed as well. I’m Kavita, KA VIT [email protected].

Victor Li:

Great. Thanks again for joining us today. I appreciate it.

Lisa Kirby:

Thanks so much for having us.

Kavita Ramakrishnan:

Thank you.

Victor Li:

If you enjoyed this podcast and would like to hear more, please go to your favorite app and check out some other titles from Legal Talk Network. In the meantime, I’m Victor Li, and I’ll see you next time on the ABA Journal Legal podcast.

Speaker 1:

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