Diversity toolkit

Diversity and Inclusion Report: US

| GC Diversity and Inclusion Editorial

Across the legal sector – from the partner level in private firms and general counsel in major corporates, right through to new recruits fresh out of law school – research shows that there remains barriers to entering and progressing through the sector for certain groups and demographics.

One aspect we felt was imperative when approaching this project was to provide a resource of practical, pragmatic guidance to help diversity flourish in businesses of all shapes and sizes.

In that vein, we asked all of our interviewees for the benefit of their experience and advice in progressing the diversity agenda, which we’ve synthesized and amalgamated into the following toolkit. Whether you’re a business looking to make its first foray into the diversity space or an experienced practitioner looking for fresh ideas – we trust you’ll find the advice both useful and thought-provoking.

Set a clear vision

Think: What does a diverse and inclusive workplace look like?

Top tip: Approach other thought leaders, think tanks or not-for-profits to help define and refine your vision and understand what best practice really is.

    • Understand what best practice might look like for your company.
    • Start with one definable project, such as a networking group, mentoring program or work experience project.
  • It’s not about building quotas or hitting numbers, but rather, creating an environment where the message is embedded in your corporate DNA.

‘If you think about the US business calendar, it has the default holidays: Christmas, Presidents’ Day and Thanksgiving. But if you look at who you have in your workforce, their personal holiday calendar can look quite different. Smart companies will embrace that beyond merely allowing their employees to take floating holidays of choice,’ explains Olga Mack, general counsel at ClearSlide.

‘At ClearSlide, we have celebrated Diwali for the past few years, partially because we have a large representation of Hindu Americans at our company. For us, it means we have a great time, beautiful dress, excellent food, and an educational component about the history and personal significance of the tradition to our employees. Many employees shared what Diwali means to them and their families. From this experience, I feel like I understand my colleagues, what is important to them, and their culture a little better.’

    • Targets and measures can be helpful but are often more effective when approached as a product of or in tandem with cultural change.
  • It’s not a beauty contest – your commitment and strategy has to be more than skin deep. Employees and clients will see through this.

As GE general counsel Alex Dimitrief states, ‘companies that pay lip service can actually set back diversity by being the type of company or law firm where folks realize they are just a number or a metric. All employees want equal opportunities to build and grow their careers, regardless of their backgrounds.’

Getting strategic buy-in

If diversity is to truly take root within an organization, it has to be a core business initiative – not an addendum tacked onto the tail end of a human resources policy. To achieve that, strategic buy-in from the top table is essential.

At Mastercard, chief executive Ajay Banga has made general counsel Tim Murphy responsible for diversity and inclusion throughout the whole company. As Murphy is part of the business leadership, Banga felt this level of accountability was needed to show that Mastercard viewed diversity and inclusion as a business enabler and not just ‘nice to have’.

  • Knowing the touch points for your industry and business is crucial here. Decide what will be more compelling – internal or external drivers.

From an internal perspective, embracing diversity and inclusion in the workplace has been proven to improve employee engagement, creativity and innovation.

Top tip: What tends to be universally convincing, regardless of the business and industry, is the overall impact on the bottom line.

When McKinsey & Co investigated the effect of diversity on the composition of boardrooms in Europe, those which ranked in the top quartile for executive diversity handily outperformed their less-diverse peers, earning on average 53% higher ROE (return on equity) and 14% higher EBIT (earnings before interest and tax).

Take stock of where you stand now

Think: How do your current policies operate in practice? Consider both soft and hard rules.

    • There is sometimes a gap between policy and practice so be aware of both sides when evaluating the picture.
    • Evaluate all policies which relate to the employee life cycle: recruitment and attraction, onboarding, performance assessment, training and development, and career advancement. Think – how do these align with the organization we are now and the diverse and inclusive organization we want to be?
  • Surveys and focus groups may help with this process of evaluation.

Top tip: Set limits and rules for this process so it does not spiral out of control.

Sometimes it’s about having hard conversations now to derive future benefits. A great example is the investigation that Salesforce conducted into gender pay discrepancies, as explained by its general counsel, Amy Weaver: ‘In 2015, our chief executive announced that he was going to conduct an analysis of the compensation of our 17,000 employees to see if there were differences between what we were paying men and women. He announced this commitment before we knew what the results were and we subsequently made $3m worth of payments to correct the differences that arose during our study.’

Track, monitor and re-evaluate

It’s an old management cliché, but ‘what gets measured, gets done’. With a baseline to work from and goals for the organization in place – both aspirational and tangible – progress can be tracked and successes shared.

Top tip: Remember you have to be counted to count, and diversity goes far beyond our visible differences. While characteristics like race and gender are outwardly visible, factors like sexuality, socio-economic background and disabilities are not necessarily obvious.

    • Be prepared to engage in a constant process of evaluation, re-evaluation, repositioning the goal posts, etc.
  • Don’t let the measurements obscure the importance of more subjective indicators and the need for cultural change. The numbers can be good but the experience can be awful if cultural change has not really taken root.

As Salesforce general counsel Amy Weaver explains, while numbers are important, there’s more to achieving diversity and inclusion than just hard statistics. ‘I don’t think it’s enough to just look at the numbers. Looking at the numbers can help guide decision-making around diversity, but they only tell part of the story,’ explains Weaver.

‘It misses out important areas around inclusion and how people are really dealing with issues, how they’re sitting in the company and doing well. So that’s one area which is going to continue to be a struggle around how we measure success and progress in these areas, but I’m confident that by fostering a culture of transparency and openness, we can continue to make meaningful gains.’

YOUR COMMITMENT AND STRATEGY HAS TO BE MORE THAN SKIN DEEP.

That sentiment was shared by MassMutual general counsel Mark Roellig, who placed an emphasis on the activities and processes which further the diversity agenda, as opposed to the end result. ‘My overarching belief is that the most important things to focus on are the activities that lead to the result we are seeking to achieve,’ says Roellig.

‘If you focus on the result itself too much, you can end up essentially making it up. I could be told that by next week 50% of my law department must be women and I can do that – I have the ability to hire and fire after all. But what’s more important are the activities which drive the results; that way you’re achieving results in the right way.’

Communication is key

Employees need to know that inclusion and diversity is truly important to management and this has to be displayed by actions, not just words. This works both from the top down and bottom up.

Top tip: There needs to be forums accessible to people throughout the organization which enable them to communicate what is working and what isn’t – affinity groups on a departmental or company-wide basis can be fundamental here.

    • Don’t assume that managers know how to manage diversity and inclusion.
    • Many issues can arise from discomfort, lack of knowledge or mistakes rather than bad actions.
    • Training for managers is a key component.
    • Unconscious bias can be one of the biggest issues in curtailing diversity and inclusion. It can stem from well-meaning intentions, hence the name. Training in this area is fundamental in trying to advance inclusion and diversity and should be mandatory for senior managers.
    • However, research carried out by Harvard and Tel Aviv universities shows that merely using a stick approach can have adverse effects. Managers need to feel invested in such programs for them to have best effects.
  • Managers need to know where diverse talent is.

Eric Nitcher, group general counsel at BP, shares his experience in this domain, saying, ‘a balanced diversity program not only identifies and encourages talent but also educates leadership regarding this internal talent pipeline. One way we do that is through the use of employee development panels. This involves several leaders in the legal function having a detailed discussion with individuals about their careers, development and aspirations. The leaders then present their views on the employees to our legal executive team. This process is key to educating senior legal leadership about the talent we have on board and then helping get this talent in the right places, developing the necessary skills, and moving upward.’

But it’s a two-way street. Eric Grossman at Morgan Stanley comments, ‘I always look across the audience at town halls and say “no one is looking out for your career as much as you – you own it”.’

Mentoring and sponsorship

Don’t be deterred from mentoring due to the time commitment. Mentoring can be one meeting or conversation.

A big challenge in many large companies is making sure people don’t get lost in the system – particularly where diverse candidates are concerned.

As Louise Pentland at PayPal remarks, ‘I have been very focused on building awareness about step-level conversations, where people who don’t report to me have a meeting with me. Being a role model is as much about the interactions and conversations as it is about making yourself available. Mentoring can be just one conversation, it doesn’t have to be a long-term commitment.’

GE general counsel, Alex Dimitrief explains, ‘We have mentoring relationships set up across the whole team – connected with our affinity networks – and I ask each member of our executive team to mentor at least one diverse lawyer on an ongoing basis.’

‘Much of our efforts on the D&I front are centered on making certain that high potential, diverse employees don’t get lost in the mix – that they understand we value them and are investing in their futures,’ adds Morgan Stanley’s chief legal officer, Eric Grossman.

Career progression

Both diverse employees and their managers need to communicate and understand if there are particular challenges to career progression. Figuring out what the solutions for these are and strategies for success is essential.

    • Honest feedback is the key on both sides.
    • Managers need to be aware of unconscious biases, even if they are well meaning. Certain employees won’t be interested in stretch assignments, such as parents.
  • If opportunities are offered, practical solutions should be discussed to make sure these are actually opportunities for employees – particularly those who may have other responsibilities such as parenting or elder care.

‘Over the last couple of years, we recognized an internal need to better develop our diverse talent pool. In response, we created a suite of career development initiatives that were rolled out across the globe. What we realized, however, is that we were not doing a particularly good job of marketing these new resources. So we are now working closely with HR and our diversity councils to ensure our people know what these initiatives are and how they can leverage them. In particular, we are also working to assess how to deploy these tools more effectively in developing our women and minority legal talent,’ explains Eric Nitcher, group general counsel at BP.

‘A significant new aspect of our talent development program is the move to separate out performance management discussions from career development conversations. We’ve found that considering them together creates the risk that we focus too much on feedback around current performance and do not adequately consider the employee’s future career development. We want both quality performance and development conversations, with each being an important part of our holistic talent development.’

Expand the talent pool

Many of the companies we interviewed are trying to be more creative in how they find talent. Looking outside of the usual places is a key starting point.

Top tip: Build a diverse pipeline program – thinking strategically, but also creatively, will be the best way forward.

    • Make your own opportunities via internships or fellowships, and be assertive about this both internally and externally.
  • Bringing diverse candidates to the profession via your organization is a key way you can use your power as a client to change the face of the profession, just like GE and Pepsi are doing.

For Alex Dimitrief, recruiting from atypical areas has broadened his perspective on just what talent looks like: ‘I am becoming more persuaded that pedigreed law schools and law school grades are overvalued as predictors of future success as a lawyer; if you limit yourself in your view on this then you limit yourself to a smaller pool, which is self-defeating in regards to diversity and inclusion.’

SOME COMPANIES USE THEIR NETWORKS AS A GREAT WAY TO GET EMPLOYEES’ PERSPECTIVES ON KEY STRATEGIC ISSUES.

But this approach doesn’t have to be limited to major corporates. Genius’ co-head of talent and recruiter Eddie Washington uses a similar tact when recruiting. ‘We have to be pretty aggressive with outbound recruiting – it’s a different approach to wanting to focus on diversity from an inward perspective. Part of what I am doing is searching proactively for people and then speaking on panels and other outward engagement to drum up interest with diverse candidates,’ says Washington.

    • Focus on more than grades and which schools candidates went to.
    • Consider techniques from contextual recruitment practices which take into account the candidate and their background holistically, rather than isolating individual portions of their skillset and qualifications. For example: is that person the first from their family to attend college? How do they measure up comparatively with other candidates from a similar socio-economic or demographic situation?
    • Don’t just rely on inbound approaches. Look for the candidates you need, and look where diverse candidates will be.
    • Consider using blind applications and CVs.
  • Be assertive with outside recruiters and don’t accept non-diverse slates.

Top tip: Broaden your point of view – part of the pipeline challenge is that those evaluating candidates sometimes have the tendency to gravitate to people like themselves. Most companies we spoke to strive to always have at least one diverse candidate being considered for each open job, while others had set proportions which had to be met across all potential new hires.

For Dana Rao, vice president of intellectual property and litigation at Adobe, early engagement is an essential attribute for major companies – both from the perspective of building a bigger potential pipeline and corporate social responsibility. ‘One of the initiatives we are focused on supporting is Girls Who Code. We realize we can’t increase diversity without getting young women interested in the computer science and engineering fields early on,’ says Rao. ‘Girls Who Code is a US national non-profit organization that takes girls who are in 11th and 12th grades (16 years old) and aims to get them more interested in computer science, so that they are there to fill your technology spots when you are ready to hire. The aim is to address the gender imbalance in technology jobs, which is actually only getting worse.’

Demand accountability

Ask for more than blanket statistics from outside suppliers. Some general counsel think that the catch-all statistics provided may not necessarily be wholly representative of the actual situation, but rather, are able to be manipulated to paint a more positive picture of a supplier’s approach to diversity and inclusion. Apocryphal stories include law firms using the likes of reception and administrative support staff to boost diversity rates in the overall figures.

    • Ask for statistics by practice area.
    • Find out how many partners are diverse and whether they are equity partners.
    • Ask how many diverse lawyers will be on your matter.
  • Some clients like PepsiCo and Walmart have insisted that law firms provide a diverse relationship partner.

Top tip: Don’t reinvent the wheel; use a tried and tested model. The ABA Model Diversity Survey provides a template to ensure clients are asking the same questions of their law firms. But it also tackles hard-hitting subjects such as amount of diverse candidates in leadership, highest billing partners and what their identity is, and the attrition rate for diverse lawyers over the past year. To download a copy visit: www.americanbar.org

Don’t just ask for figures and do nothing with them – demonstrate their important by rewarding firms who do well.

This isn’t just confined to large companies with lots of purchasing ability. Even smaller clients can use their power. As Jean Lee, CEO of the MCCA, comments, ‘The effect of this can be big, for example if you are a small company that has ten lawyers you probably won’t have huge amounts of transactions or litigation but when you use outside counsel you are using them for larger matters. Well, as an in-house lawyer today you have much more power than you did 20 years ago. You can say you can have my work but I want to know I have diverse lawyers really working on my slate.’

Conversely, for firms who do not perform well, show them that this has implications. This can be constructive – if a law firm is struggling in this area it may be an opportunity for you to provide training and support to them.

An excellent instance of a client using its power to help effect positive change is that of Salesforce’s general counsel, Amy Weaver. When faced with what they saw as an unacceptable situation with diversity of a potential partner firm, instead of voting with their feet, Weaver took it upon herself to drill down into the why – not just the what.

‘I believe that one of the most powerful ways to use your influence here is to find out where these firms might be struggling and work out how we can help each other in partnership. I had one firm who had shown up to do a CLA and the group of people present was not diverse at all. So I called up the partner and I could have just said “we aren’t going to work with your firm because of this”,’ explains Weaver.

‘Instead, we sat down and had a conversation about that firm’s recruitment of female lawyers and he shared some of the difficulties they were having with this. They were making a real effort to improve those demographics, and if I had just looked at the statistics, I wouldn’t have known that. We had a really good conversation about their strategies, strengths and weaknesses in this area and talked about potential solutions to help improve their diversity. I think that’s a perfect example of using your influence as the client to help effect change.’

Creating an inclusive workplace

Think: When people don’t feel comfortable being their true selves, they’re investing emotional energy into censoring themselves and adjusting their behavior to fit in. That energy and thought power could be harnessed far more effectively into productive areas once those barriers are removed.

This concept is fundamental to Barclays’ legal team’s ‘bring your whole self to work’ initiative. Rhanda Moussa in-house counsel at Barclays explains, ‘We broadly work from three guiding principles: attract, retain and develop. Attract focuses on our commitment to recruiting diverse candidates and cultivating a culture in which people feel comfortable bringing their individuality and talent to Barclays and to legal. Retain focuses on continuing to have a dialogue around D&I and celebrating our diverse talent. Develop is intended to insure that we foster a culture in which all colleagues can thrive and where everyone has the same opportunity to meet their full potential.’

    • Role models can be key here; they illustrate the possibility of success and are a fantastic way to inspire hope.
    • Network groups are a good method of creating a dialogue with key identity groups.
    • But remember, network groups don’t just have to talk about diversity and inclusion. Some companies use their networks as a great way to get employees’ perspectives on strategic issues and approach problems in a different way. This can then be a clear example of the strategic benefits of diversity in avoiding groupthink.
  • Ally programs show that the initiatives are about everyone and fundamental to promoting the idea of a safe workplace. This can be especially key in jurisdictions where, for legal or cultural reasons, certain identity groups have to be less visible.

Diversity groups

While this is not an exhaustive list, these organizations can provide a good starting point for in-house lawyers who want to do more with diversity, internally or externally, via research, supporting materials and training.

  • 2020 Women on Boards, www.2020wob.com
  • Thirty Percent Coalition, www.30percentcoalition.org
  • American Civil Liberties Union, www.aclu.org
  • American Bar Association, www.americanbar.org/diversity
  • Catalys, www.catalyst.org
  • The Executive Leadership Council, www.elcinfo.com
  • Human Rights Campaign, www.hrc.org
  • Leadership Council on Legal Diversity, www.lcldnet.org
  • Minority Corporate Counsel Association, www.mcca.com
  • National Association of Women Lawyers (NAWL), www.nawl.org
  • The National Black Justice Coalition, www.nbjc.org
  • National Diversity Council, www.nationaldiversitycouncil.org
  • NAACP Legal Defence & Educational Fund (LDF), www.naacpldf.org
  • The National LGBT Bar Association, www.lgbtbar.org
  • Out & Equal Workplace Advocates, outandequal.org
  • The Quorum Initiative, www.thequoruminitiative.com
  • The Williams Institute at UCLA School of Law, williamsinstitute.law.ucla.edu
  • Women in Law Empowerment Forum, www.wilef.com