“Diversity” and “inclusion” are concepts that most American businesses, including law firms, have expressly embraced. In today’s legal services market, being perceived as a firm that attracts and retains diverse talent is certainly an asset. As the nation’s demographics continue to change, more and more clients are seeking to have attorneys of color involved in their cases. The landscape has shifted so that law firms that put forth an effort to recruit and hire women and people of color enjoy a competitive advantage.
However, as with every change to the way things had been done before, full diversity and inclusion remain elusive. While most firms market themselves as diverse and tout their recruitment of legal professionals of color, relatively few non-white attorneys reach shareholder and senior partner-level positions within their firms, and many end up leaving the firm after a short time. Even genuine and well-planned efforts by firms to become more diverse and inclusive generate many questions about what they could have done better and not a small amount of frustration.
I have a unique perspective on this topic. I relocated to Wisconsin from Puerto Rico in the middle of my career, after having reached partner status at my firm in Puerto Rico. Because virtually everyone in the legal profession there is Puerto Rican, “diversity” and “inclusion” were barely on my radar while I practiced there. On the other hand, in Wisconsin I have become one of a relatively small number of attorneys of color. Since relocating, I have worked at national, regional, and local firms of all sizes. The racial compositions and level of fluency of each of these firms on the topics of diversity and inclusion certainly varied, but the common denominators among them were a recognition that the legal services market is changing and a desire to adapt to this changing market.
In this article, I share some conclusions and practical tips that I have formulated from my own experience and professional background. They are by no means finite and certainly are not meant as an indictment of our legal community. They are meant as positive everyday approaches that can be readily implemented by any firm, and I hope they will be received as such. This article concentrates on diversity in terms of race, ethnicity, and color, instead of gender, as I cannot claim any first-hand experience with the latter.
The “Pipeline” Is Not the Problem
Many firms point to the small number of people of color graduating from law school as an obstacle to becoming more diverse. While it is true that people of color constitute a small number of law school graduates, I choose to look at this as a “glass half full” opportunity. The fact is that every year Wisconsin law schools are graduating dozens of non-white students who are available for hiring. This does not even take into account graduates from out-of-state law schools who intend to practice law in Wisconsin.
The issue is that, as a matter of policy, many firms do not even consider recruiting law school graduates who did not graduate in the top 5-10 percent of their class. In my opinion, evaluating young attorneys purely on the basis of law school grades not only limits the pool of candidates in general but further limits the pool of candidates of color that a firm will even consider hiring.
I am not saying that firms should lower or relax their standards or hiring criteria, nor am I advocating for quotas. My point is simply that, if you only look at the best law students when hiring attorneys, you are missing out on many candidates who will bring invaluable skillsets that cannot be reliably gauged by academic achievement. In 20 years working with attorneys – first as an intern and then as an attorney – some of the toughest, most creative, and most resourceful colleagues I have met were middling students while in law school.
Moreover, candidates from different cultures often have skills that are prioritized in that culture. For example, in Puerto Rico, being resourceful and “good on your feet” is part of the culture, and having that skillset has served me well in my career.
Setting rigid and artificial boundaries on the sort of candidates your firm will consider will turn the “pipeline” of candidates of color into a small “trickle” and will greatly affect your firm’s plans for becoming more inclusive. You might want to consider using your summer internship programs creatively. Bring in “outside-the-box” non-white candidates and challenge them to think as practicing attorneys. You will likely be pleasantly surprised at how talented some of these candidates are, regardless of what their law school transcripts say.
Another good idea is to expand your recruitment efforts to places outside Wisconsin. There are great candidates who have practiced law elsewhere who might be looking to relocate to our state. If you do bring to your firm someone from another state or country, please be mindful that there will inevitably be cultural and professional learning curves for them to navigate. As someone who had tons of experience practicing law elsewhere, I underestimated the magnitude of these learning curves. Wisconsin was not only a different environment for me, but I found that the practice of law here was very different from Puerto Rico’s, and it took me some time to catch up. This is normal. Be patient and, if possible, have someone who can mentor this individual.
A Firm Is Not Only a Collection of Lawyers
Many firms tend to limit their diversity efforts to attorneys and unconsciously minimize or dismiss the importance of having non-white employees who are not licensed or practicing attorneys. In my opinion, this approach is misguided, because many professionals who do not hold a law degree or are nonpracticing attorneys are very talented and experienced, and their contributions can surely contribute to the success of any law firm.
Even if they are not the sort of high-profile hire that a firm can tout on its website, recruiting non-white candidates for support staff and other positions is an important step in making a law firm more diverse. The same positive aspects that inform the decision to hire non-white attorneys apply to nonattorneys: they bring a fresh perspective and world view to the workplace, their presence in the firm better aligns the firm’s demographics with those of the nation, and their success and positive experiences working at the firm have the snowball effect of attracting other candidates of color.
Additionally, having a diverse support staff helps ease the transition of non-white attorneys into the firm. A newly hired Black or Latinx attorney might feel more at ease working with a Black or Latinx assistant or paralegal or may even feel that they can confide any potential workplace issues in someone who shares their background.
In short, the best approach is to view the law firm as a single workplace in which everyone plays an important role, instead of as a collection of attorneys. The more a law firm invests in diversifying its entire workplace, the more likely it will be to attract – and keep – attorneys of color.
Non-white Attorneys Notice When Law Firms Do Not Believe in Diversity
Having in place an equal employment opportunity policy and actively prohibiting discrimination and harassment on the basis of race, color, and ethnicity is a must but is by no means enough to attract and retain attorneys and employees of color. The firm should unequivocally and unambiguously convey that it is honestly committed to diversity and inclusion.
As an attorney of color, I have found it discouraging to see shareholders and senior partners roll their eyes (sometimes literally) at “that diversity thing.” While I am sympathetic enough to understand that a lot of the downplaying of the importance of workplace diversity is generational, it does become apparent to a person of color that a firm’s stated efforts to diversify are not genuine when its own decision makers do not appear to understand or respect the importance of diversity.
Members of the firm’s leadership should be aware of any such comments or attitudes from their peers. Difficult conversations must occur, if necessary, to convey the importance to the firm’s future of having a diverse and inclusive workplace. More importantly, everyone in the firm should be educated about the need for the commitment to diversity to be honest and deep-seated. Potential hires, new hires, and current employees of the firm all know when the firm’s efforts to diversify are not supported by everyone in the firm, and the word gets out and spreads very quickly in the legal community, undermining the firm’s efforts and tarnishing its reputation.
Your Non-white Attorneys and Employees Are More than Their Color or Race
It is helpful to always keep in mind that the reason why non-white attorneys work at your firm is because they are very good at their job and are assets to your firm, not because of their race or color. Some new or potential clients require that some thresholds for diversity be met by their legal services providers, but some firms use the presence of their attorneys of color to obtain that legal work and then have white attorneys do all the actual legal work. I have sat in on many a conference call with clients who have specifically requested that the case be assigned to an attorney of color, but I was not allowed to get in a word edgewise, while the white partner monopolized the conversation. Besides being off-putting to many clients, this can be dispiriting to attorneys of color, who feel that they were hired so the firm could check a box.
Attorneys of color also know when their race or ethnicity is being used disingenuously by the firm for marketing or client-relations purposes. Far too many white attorneys in senior positions bring up a coworker’s diversity when talking to a new or potential client, even when the client has not asked about it. When this happens, it is transparent to everyone why the attorney’s diversity is being brought up.
I think it is a good idea to treat your non-white attorneys with the respect and deference with which you would treat anyone else who was good enough to have been hired by your firm. Try not to put your attorneys of color in a position in which they are expected or required to use their diversity for your convenience.
Words Do Matter
While remarks that are intended to disparage another race or culture are obviously never acceptable in the workplace, offensive comments usually are made unintentionally, without the person making the statement being aware of why the statement is problematic. Dealing with unintentionally offensive statements requires compromise, humility, and professionalism from both the person making the statement and the recipient of the statement. Reporting every offensive statement to human resources is counterproductive and creates an environment in which people are afraid to talk about diversity.
Ideally, you will foster an environment in which non-white attorneys and employees will have enough trust and common sense to be able to properly gauge intent and have frank conversations in which they can educate the person making an objectionable statement. In the meantime, it is a good practice to signal to everyone in the firm that words do matter, that making sure that nobody in the firm is made to feel bad is not “wokeness” or “P.C. culture,” and that the recipient of an objectionable comment does not need to “toughen up” or “develop thick skin.” I have heard people excuse racially insensitive jokes by saying that they wouldn’t mind somebody making fun of their own Irish or Polish heritage. I believe this is a dangerously misguided attitude, as encouraging people to make ethnic or racial jokes or comments would create a snowball effect of inappropriate and unprofessional conduct.
The bottom line of creating a healthy firm culture is not policing language or polemicizing race and ethnicity but making sure that everyone feels welcome and enough at ease at the firm to want to keep working there. Making light of the role that words play in this runs counter to this objective.
Making Assumptions About Race and Color Is Not a Good Idea
There is more to diversity than someone’s physical appearance. Law firms that focus exclusively on skin color so they can check a box oversimplify diversity and miss the point of why diversity is important. Sometimes, a person’s ethnicity is not obvious or apparent. For example, many Americans do not know that there is great diversity in most Latin American countries. There are blond and blue-eyed Mexicans, dark-skinned Argentinians, and red-haired Puerto Ricans. It is a mistake to assume that there is such a thing as “looking Hispanic,” or to assume that Latinx attorneys who do not fit your idea of what “a Hispanic looks like” do not face discrimination in our society and in our business.
I think it is important to be aware of this when monitoring office chatter. While there is no reason – even in an all-white workplace – for disparaging remarks about any race or ethnicity to be tolerated, this is even more important when you consider that such statements might be offensive to coworkers. Someone who makes this sort of statement might think it is not a problem because he or she thinks that there are no people of color present. It is advisable to impress on every member of the firm the importance of never assuming that statements about race or ethnicity will be acceptable to coworkers. Erring on the side of caution is always a good practice.
The Process of Inclusion Can Be Uncomfortable
I think that it is hard for a law firm to become more welcoming to non-white attorneys and employees if discussing diversity beyond the surface level will make its white members and employees squirm. The firm’s stakeholders, particularly its leadership and management, should be aware that the process of inclusiveness is fraught with discomfort and awkwardness, and that its success will require humility and self-control from everyone.
All too often, well-intentioned conversations about diversity and inclusion become solely about the white person’s feelings. The individual will believe that he or she is being wrongfully accused of being a racist and will be on the defensive and less receptive to constructive feedback. The problem is compounded when the conversation arises from an honest mistake or poorly worded comment by the person.
It is important to educate everyone in the firm to be frank and open minded with each other, and to understand that genuine long-lasting diversity cannot be attained if people are reluctant to grow and learn. Coworkers need to give each other the benefit of the doubt and not assume that every comment is ill-intentioned or that constructive criticism is somehow a personal attack. This can only happen through honest and respectful dialogue.
Politics Is Not Always “Only Politics”
In my opinion, conversations about politics (or religion, for that matter) have no place whatsoever in a professional setting. Having said that, it is difficult to monitor workplace conversations to the point that no political discussions take place, particularly given today’s divisive political discourse. The problem I see is that, besides making people uncomfortable for all the apparent reasons, political discussions in the workplace can also make attorneys and employees of color even more uncomfortable, to the extent that the conversations are related to racial hot-button issues like immigration or police brutality.
All firm attorneys and employees should keep in mind that, while theoretical to attorneys or employees who do not come from communities of color, some divisive political issues are often personal to non-white attorneys. Even if everyone at the firm has a right to their political views, it is a good idea to foster a sense of empathy and practice compassion with attorneys and employees who come from a background in which they have had first-hand experience with these issues. I have sat through people expressing many poorly informed opinions about Puerto Rico, and while they have not necessarily offended me, I have wondered what upside someone who has never been to Puerto Rico – let alone lived there – could see in giving me an unsolicited opinion about something that is deeply personal to me.
A good rule of thumb is that political conversations in the firm do not have any upside for the workplace and may actually backfire, to the extent attorneys and candidates of color perceive the firm to be tone-deaf to issues that are of great importance to communities of color.
Beware Having Low Standards or Expectations
Not every obstacle to diversity is hostile and ill intentioned. Paradoxically, one of the everyday things that make it hard for people of color to feel at ease in a majority-white work environment is what I call “benign racism.” This usually takes the form of pandering or having low expectations for non-white employees.
Many well-intentioned people who have a genuine desire to provide a welcoming environment for all overwhelm and confuse individuals of color, some of whom come from cultures in which these conversations are not even occurring. While this often produces otherwise harmless awkward interactions, there is such a thing as killing diversity with kindness. Most professionals of color do not want to be babied or held to a lower standard than their white coworkers. They simply want to fit in and show up to work every day, while being provided a work environment that acknowledges and respects the fact that they come from a different culture than their white coworkers and that they often have had to surmount systemic hurdles that their coworkers have not.
Holding your non-white attorneys and employees to the same standards of quality and conduct as the rest of the firm and being mindful of the cultural hurdles they may face transitioning into the firm are not mutually exclusive. Be patient, supportive, and flexible, but do not pander to or underestimate employees.
Conclusion: Diversity and Inclusion Are Achievable
The advice provided in this article may seem daunting, perhaps even contradictory in some cases. However, all the points discussed above are offshoots of being open-minded, empathetic, and genuine. Employing common sense and erring on the side of caution is always the best approach. As long as you remain committed to learning and evolving, and to leading your firm to learn and evolve, you will eventually reap the rewards, and your firm will benefit greatly from tapping into a new talent pool that will make your firm more inclusive and, ultimately, better.
Meet Our Contributors
What was your funniest or oddest experience in a legal context?
Litigating against a pro se party is always unpredictable, but I still remember the self-represented individual whose case depended on the testimony of several witnesses who had passed away. When I asked him in discovery to list his witnesses and where they could be located, he responded that I could go to the cemetery and talk to them myself. I don’t know if he was being snarky, but I got the case dismissed shortly thereafter.
Carlos R. Pastrana, Cade Law Group LLC, Milwaukee.
Become a contributor! Are you working on an interesting case? Have a practice tip to share? There are several ways to contribute to Wisconsin Lawyer. To discuss a topic idea, contact Managing Editor Karlé Lester at (800) 444-9404, ext. 6127, or email org klester wisbar wisbar klester org. Check out our writing and submission guidelines.