For decades, the legal profession has made an effort to diversify its ranks. These efforts have had some effect: in 2013, according to the National Association of Law Placement (NALP), people of color comprised 21 percent of associates at all law firms and 7 percent of the partner ranks—about double their population in 2000, when 13 percent of associates and 3 percent of partners were people of color. The top 50 largest law firms saw nearly equal growth.
While these numbers are an improvement, conditions for women of color and minorities in the legal profession are hardly promising. According to “Visible Invisibility: Women of Color in Fortune 500 Legal Departments,” a 2012 study from the American Bar Association (ABA), women of color in particular “bear the brunt of dual minority status in significant ways.” The study continues:
They are the repository for every stereotype, negative bias, and low expectation associated with race, ethnicity, and gender. More than any other group, their intellect, abilities, and professionalism are routinely questioned and second-guessed, often in the subtle and poorly understood ways that stereotyping, unexamined bias, and unearned privilege are expressed. … Sadly, female attorneys of color often are treated as second-class citizens in a profession that ironically is charged with the responsibility of ensuring justice and equality for all.
This confluence of factors drives women of color, who have the highest attrition rate of any group of associates, away from the profession. Indeed, 57 percent of offices reporting to the NALP reported no minority women partners, while more than 27 percent reported no minority women associates.
Veta Richardson, president and CEO of the Association of Corporate Counsel, says the common tendency to favor people from backgrounds similar to our own compounds challenges for women of color. “Some basic rules of organizational behavior and executive behavior suggest that most executives, like most people, like to interact with people that they perceive as similar or like themselves. And oftentimes, people choose and groom as successors people who remind them of themselves at an earlier age.”
“Development of relationships across race, across ethnicity, across culture, across gender, takes a little bit more work than it would interacting with someone who is like you,” Richardson says. “Getting to know someone who is like you goes unexpressed or seems unnecessary to address, whereas it takes a lot more time and effort to get to know someone whose background or upbringing, culture, or racial perspective in society is different than one’s own. So, similarity results in comfort, which results in a greater extension of oneself for professional development, informal mentoring, and the like. All these things are instrumental to one’s ability to achieve success.”
In the ABA study, women of color left law firms for a number of reasons. In addition to not feeling valued or appreciated, they reported feeling unsupported (22 percent); an inability to establish mentorship relationships (21 percent); feeling isolated and marginalized (16 percent); and being subjected to stereotypes and discrimination (11 percent).
The Minority Corporate Counsel Association (MCCA) surveys in-house counsel every year. Joseph West, MCCA’s president and CEO, notes that all women tend to leave as they move up the ranks, but those patterns “are even more pronounced for women of color.” MCCA’s 2014 survey found that even though minorities were hired and even promoted at a high rate, they continued to leave firms in disproportionate numbers.
Family responsibilities can also pose challenges for women of color, he notes:
Women of color, particularly African-American women, are far more likely to be either the sole or the primary breadwinner in their household, which places an additional burden of expectation and performance on them. They are statistically more likely to have collateral relatives for whom they will be a caregiver as well. You combine those things—the anti-woman bias, the anti-minority bias, the additional financial burdens and pressures, the expectations of people in the household or collateral relatives—and it’s kind of a perfect storm for a high rate of burnout.
The eat-what-you-kill approach of many firms, in which business-origination credit—and revenue—go to lawyers bringing in business, also presents obstacles, West says. “I think women generally are less likely to promote themselves and their abilities, whereas men, especially white men, generally have no problem doing so, even when it’s a stretch. And that type of behavior tends to be rewarded in law firm settings.
Indeed, while professional women are well paid, they consistently experience a greater earnings gap compared to men than in lower-wage jobs. Women of color report losing income at particularly high rates. In a 2010 study from the Project for Attorney Retention and the MCCA, 84 percent of partners who were women of color said another partner at their firm had threatened or bullied them over origination credit for new business (as compared to about 30 percent of white women partners). The study also found two-thirds of women-of-color partners and about half of white-women partners had participated in a successful client pitch— ironically, known as a beauty contest—but did not receive a proportionate share of the origination credit or otherwise have their contribution recognized financially.
Prior to taking the helm at MCCA, West was associate general at Walmart, where he acted to counter this common problem: he required outside firms to give origination credit to the partners with whom Walmart was working—and to certify that they had done so in writing. By taking control of the partner selection process—what Walmart called the Relationship Partner Initiative—West shifted more than $60 million in business to women and minority lawyers.
While ‘outsourcing’ your life—sending out laundry, hiring a housekeeper or nanny—works for some, for others, particularly women from non–Anglo Saxon backgrounds, it’s just not good advice.Sandra Yamate, CEO of the Institute for Inclusion in the Legal Profession
“I think it’s important for organizations to be mindful of the biases that exist that cut against women and minorities,” West says. “They exist throughout the career trajectory, whether it’s in recruiting, discussions of work assignments, compensation, evaluation of the work, advancement—across the board. So if there’s going to be real and meaningful change, it can’t be piecemeal. It has to be holistic. And at the heart of it are the biases that cut doubly against women who happen to be minorities in the profession.”
Meanwhile, diversity efforts by even well-meaning firms can fall flat for women of color, says Sandra Yamate, CEO of the Institute for Inclusion in the Legal Profession. “Gender issues in the profession often devolve into a discussion of work-life balance—the challenges of balancing a family life and childrearing responsibilities,” she says. “All of that is legitimate. But for a lot of women who come from lower economic subsets and other backgrounds, who are often women of color, they never grew up in an environment where there was a presumption that they were going to get married and stay home and raise a family. Their mothers work, their aunts work—everyone they know. There was an expectation that they were going to have to, if not be the breadwinner in the family, contribute substantially to the family’s finances.”
“While ‘outsourcing’ your life—sending out laundry, hiring a housekeeper or nanny—works for some, for others, particularly women from non–Anglo Saxon backgrounds, it’s just not good advice,” she says.
This focus can increase feelings of alienation for women of color and working-class women, who simply don’t approach the problem in the way that white middle or upper-middle class women might. “A lot of times when women’s programs or efforts focus just on that, it’s so classist that I think it turns off a lot of women of color,” Yamate says.
Relationship patterns add to the disconnect. “When you compound it with the demographics of what’s happening with African-American and Hispanic young men and the disproportionate rates at which they have opportunities to pursue professional careers and also oftentimes end up incarcerated,” she says, there’s less “likelihood that they’re going to face the same issues as their white women peers. They don’t have those options. They’re not married to someone else who has a career, and it’s less likely it’s been allowed for them to even have that option to decide to stay home or have a nanny or work part-time. That’s just not even on the table.”
“We need to be more sensitive to the fact that we’re really talking about socioeconomic backgrounds,” she says. Finding help with household responsibilities “is a legitimate issue, and I give the women who have to deal with that credit that they’re able to find that balance or are struggling with it. But it’s not everybody’s worldview.”
By the same token, there’s evidence that when African-American women do marry, they have partners who are more supportive than white men have traditionally tended to be (see “Lessons on Life and Leadership”). That’s a healthy trend, Yamate believes. “In families where the entire family is working together, there’s a lot fewer hang-ups and a lot less of a sense of, this is affecting my sense of self-worth if the woman is earning more or has different career opportunities or better career opportunities.”
“Once we get over stereotyped values about who has to be the breadwinner,” she argues, “we’ll have a richer and more rewarding life for the entire family unit. It just simply opens up more opportunities for everyone.” Yamate argues that finding allies is an important success strategy for minorities and women of color:
Historically, the way the legal profession has addressed diversity efforts has always been to sort of self-segregate. You know, one more minority bar association, or another diversity committee. And those are all well and good, and they serve an important role. But if that’s the primary means by which you address some of these issues we’re having, it falls short, because a huge percentage of our profession is composed of straight white men, and if we don’t find a way to engage them in a constructive and productive way, we’re going to keep having these same challenges for generations.
The institute works to redraw diversity along different lines by encompassing a variety of measures of difference. “One of the things we’ve really tried to do is change the paradigm, to talk about it in a different way,” says Yamate. “Let’s find a way to show that this is not just an issue for women and minorities or those who are openly LGBT or have disabilities, but we’re talking about the shape of our entire profession. And that impacts all of us.”
Marian Cover Dockery founded the Leadership Institute for Women of Color Attorneys in response to “Visible Invisibility: Women of Color in Law Firms,” a 2006 report from ABA Commission on Women in the Profession. “That report documented interviews with women of color in law firms and told their stories of how they were maligned, of how they were discriminated against—things that were absolutely outrageous,” she says. “That is why I founded the Leadership Institute.”
The institute holds a yearly conference for women-of-color attorneys in Atlanta. “Shareholders and law firm partners from all over the United States give their advice about business development, mentoring, and networking opportunities,” Dockery says. General counsel from major corporations and judges serve as keynote speakers. “It has created business opportunities for the women who attend, but it also has given them an opportunity to get mentoring and advice and talk about things going on in their firms.”
Dockery says the presence and visibility of role models, whether at events like the conference or in the wider world, are crucial to building a career. “When I started, there weren’t even women law firm partners whom I could get advice from—there were only maybe two or three or four in the country, and I didn’t know who they were.”
“That absolutely makes an impact on your career trajectory. Even having women partners of color in the law firm that you’re working in, you feel like, ‘Well, she’s doing it, so why can’t I do it?’ There was a time when you didn’t have that, when all the partners at the law firm were white males.”
“That’s not to say you can’t have mentors who are white males,” she adds. Dockery herself did. “But now, you see the Loretta Lynchs of the world, and you think, ‘She’s doing it, and that’s something I can aspire to.’ It’s great having those role models and knowing it’s possible to achieve those goals in your career.”
Intersectionality refers to what happens when otherwise distinct social characteristics, such as race and gender, combine to create a new category of classification with its own systems of discrimination and disadvantage.
In her ground-breaking 1989 article coining the term, Kimberlé Crenshaw examines whether civil rights legislation is equipped to protect individuals who have multiple—or intersecting—ascriptive characteristics. Crenshaw holds joint posts at the UCLA School of Law and Columbia Law School and is the director of the Center for Intersectionality and Social Policy Studies at Columbia.
Crenshaw explains that traditional conceptions of anti-discrimination laws typically view discrimination as occurring along a single axis—for instance, discrimination based on race or based on gender. She argues, however, that complications quickly arise when individuals claim two or more intersecting, ascriptive characteristics—such as being a racial minority and a being woman. Looking specifically at the black community, Crenshaw writes: “Because the intersectional experience is greater than the sum of racism and sexism in the Black experience, any analysis that does not take intersectionality into account cannot sufficiently address the particular manner in which Black women are subordinated.”
Crenshaw’s point is that discrimination is not simply an additive process. Rather, different categories—race, gender, sexual orientation, religion, disability, age—can combine and intersect in ways that produce unique forms of disadvantage. For example, if an employer hires white women and black men, but refuses to hire black women based on the belief that they are always single mothers, that stereotype encompasses being a woman and a member of a minority group. Neither race nor gender independently explains the inequity. The summed effects of race and gender are at play.
The legal profession is not immune to issues of intersectionality, explains David B. Wilkins, an eminent scholar of diversity within the legal profession. Wilkins, a professor at Harvard Law School and faculty director of the Center on the Legal Profession, notes:
Discussions about diversity in the legal profession often talk about ‘minorities and women’ as if these two groups are the same, or ‘minorities or women,’ as if the two categories are completely distinct. Neither approach is sufficient. Women as a group are in a different position historically, culturally, and numerically than racial minorities, who continue on average to be found at the margins of the profession. On the other hand, separate discussions about either minorities or women ignore the important reality that the majority of minority law students are now women. Minority women lawyers have all of the same issues that face white women lawyers and minority male lawyers—plus a complex set of challenges that flow from the intersection of these two forms of identity. Indeed, these challenges often include sometimes difficult relationships with both white women and minority men, who too often ignore or conflate how gender and race affect the experience and understanding of minority women. If legal employers are going to make progress on either gender or racial diversity in the workplaces of the twenty first century, they will have to pay closer attention to the importance of intersectionality in the lives of women lawyers.