Ok, I have made this point before, so I don’t want to sound like a broken record. However, since we are looking at diversity and human rights issues in my Employment Law course shortly, it is worth flagging the question again.
Once again, some Bay Street law firms have made the list of “Canada’s Best Diversity Employers”. Employers have to ‘apply” for this contest, so it is not a real assessment of most diverse employers, just a list of employers who bothered to put together an application form, so take it for what its worth. Nevertheless, on the list this year are: Fraser Milner Casgrain and Stikeman Elliot.
Hit their links and see why they made the list. They do stuff that demonstrates sensitivity to diversity issues, which is good. And I don’t mean to pick on these two firms; they are no doubt trying more than some others. But seriously, folks. There is a difference between saying nice things about diversity and supporting diversity-related social events and being a diverse employer, isn’t there?
Where is a breakdown of the diversity of lawyers at the firm? Granted, there is a breakdown of male and female “employees”, but I assume that includes all the suport staff too, right? Usualy 85-90 percent of law firm support staff are women. There is nothing there about other aspects of diversity, like skin colour, ethnicity, sexual orientation. Do those numbers include Partners? I don’t know, but since law firms usually act as if partners are not employees, then my guess is that Fraser Milner and Stikeman have not included partners in the gender breakdown. Does anyone know?
Is a firm whose partnership is 75-80 percent white, heterosexual men “diverse”? I’m not saying that is the breakdown at these two firms, because I have no idea. The ranking doesn’t tell us that. Shouldn’t it, if we are serious about diverse employers?
Which brings me to a point I’ve made several times before. If the legal community is really interested in diversity of lawyers, there is an obvious first step that should be taken. It is to require annual disclosure ofinformation about actual diversity at the law firm. I have discussed this before in regards to gender. I proposed mandatory annual disclosure of the following information:
* percentage of legal associates by gender
* percentage of partners by gender
* gender composition on major committees, including at least the executive management commitee and compensation committees
* breakdown by gender of percentile of compensation (i.e. gender breakdown in the bottom 20th percentile, 20-40th percentile, etc)
We could expand this idea to other diversity issues where people self-identify. Employment equity legislation requires similar assessments, so it is not impossible or particularly complicated to do this sort of thing. At least with regards to gender, calculating this information is straightforward and would impose little administrative burden on the firms.
Why require this? For the same reason we require organizations to disclose all sorts of other information they might otherwise not want public.
Firstly, it causes the organization to “learn” and recognize patterns it might not have paid attention to in the past. If you are not aware that 85 percent of your partners are men, and 95 percent of the top 20% of income earners in your firm are white men, then you are less likely to consider whether there are any systemic discrimination issues at work in the management systems of the firm. Secondly, it causes self-reflection within management: if the numbers look bad, and they are going to be made public, then there will be greater incentive to expore if there are ways to improve the numbers. Thirdly, information disclosure encourages healthy competition. If firms are interested in attracting top female lawyers, then they might have an interest in showing the market that women can and do succeed in their firm. Fourthly, the information is relevant to the market for lawyers, and yet the market is not creating this information without regulation. The top women students (and top students of colour, etc) are interested in knowing which firms are most welcoming and offer the best chance of success. No sensible student is going to ask a firm to layout this sort of information at a job interview, for fear of being labelled a trouble maker. But surely this information is relevant to their job selection, and the law (or Law Society) should ensure the information is publicly available. Information disclosure creates more efficient markets (that is why we require it in securities laws). Lastly, there is a burgeoning movement by in-house counsel to support diverse law firms by referring their work to the most diverse firms. A law requring disclosure of diversity related information would faciliate and encourage that movement.
Why won’t this happen: Because most law firms have very little interest in letting the public and the “market” for lawyers look under their sheets, and in subjecting their management systems to external scrutiny. The people who run law firms don’t usually believe that there is any issue at their firm relating to diversity, or that if there is, the problem is not at the law firm level, but in the lack of diversity available at the recruitment stage. In other words, it is a law school issue, not a law Bar or law firm issue. The Law Societies are run by senior lawyers from these firms, so it is unlikely that mandatory disclosure will make it onto the agenda for self-regulation. And provincial governments have mostly deferred issues of legal governance to the Law Socities and are unlikely to get involved in requring information disclosure when the Law Societies can’t reach agreement on whether this is a good idea.
What do you think? Are their any good arguments against my proposal to require law firms to publish information about the diversity of their lawyers? What are they?
Do you think law firms should make a list of Most Diverse Employers without demonstrating diversity of lawyers at the firm?