It's an ongoing debate in the law firms that actually care. How do you measure your law firm diversity? Is it based on actual lawyers, looking at an associate/partnership ratio, or do you look at diversity and inclusion policies and procedures?
The former approach has become a standard now among American firms, where young recruits routinely scan diversity statistics when considering employers. Many young lawyers and law students review diversity figures even if they are not "diverse" themselves, because they prefer working in a supportive and open environment.
Canadian firms have not been so forthcoming primarily because the base numbers here would look abysmal, especially for the largest firms with the greatest recruitment capabilities. Whereas American firms have much larger Hispanic and African-American lawyers to draw from, Canadian firms are still struggling to even locate minority lawyers, and more importantly, retain them. Retention inevitably is always the biggest issue for law firm diversity, and the resources allocated to diversity retention pale in comparison to funds spent on recruitment.
Some Canadian firms that have included diversity in their strategy have employed almost a "tokenism" approach to recruitment, looking for minority lawyers who can speak the language of a population which they want to service, or have a cultural background in an international markets they want to enter. This type of approach to diversity is superficial at best, and rarely addresses the issues of workplace exclusion that make these workplaces uncomfortable for diverse employees.
The Equality Committee of the Canadian Bar Association retained Dr. Lorraine Dyke of Carleton University, who works on workplace diversity and business strategy, to look into law firm diversity. They just released a guide for law firms at the National Conference this weekend in Vancouver, Measuring Diversity in Law Firms: A Critical Tool for Achieving High Performance, to help assist firms in developing their diversity strategies.
The guide starts out making the business case for diversity, including a 2011 statement supporting diversity which was signed by over 50 in-house counsel across Canada. These lawyers indicated they would use diversity as part of their criteria for selecting law firms, so many lawyers are realizing there is a cost to their historic ambivalence.
The guide then continues to describe the two different approaches towards measuring diversity that I mention above, and includes tips on how to design and pre-test a survey, a sample communication plan, and ethical considerations for administering surveys. The appendix also includes a self-identification survey template.
The guide indicates that firms with less than 150 employees will not have enough respondents from diversity groups to provide valid results through general employee satisfaction or engagement surveys. One of the major challenges with assessing diversity through self-identification surveys is that they simply cannot work for smaller firms, or larger firms which lack sufficient diversity, because it is impossible to ensure anonymity.
Some bar associations have attempted to collect diversity statistics over the years, but still do not have an accurate grasp of issues of exclusion. Most exclusion in law firms today occurs in subtle ways, often using euphemisms such as "fit," and would not in my opinion be properly addressed even through the strategies expressed in the guide.
Of course collecting information and not doing anything about it is a futile waste of time, and the guide does suggest taking action by revising diversity policies and strategies, filling gaps in workplace representation, removing any barriers to inclusion that may exist, and generally improve the firm's diversity management.
Follow-up may include reporting the results to the entire firm to demonstrate commitment, but also conducting in-depth focus groups with diverse employees. However, in my experience both of these approaches put undue pressure on diverse groups, often accentuating exclusion if adverse findings are reported. Most diverse groups, who have yet to penetrate the partnership ceiling in significant numbers, do everything they can to avoid attracting attention to their unique qualities. More forthcoming responses may be obtained during exit interviews, although diverse groups are likely to over-emphasize the role of firm exclusion when they are already leaving the firm.
The CBA guide is a good first step for firms who don't know where to start with the diversity issue. But it's not going to achieve the goals of diversity by itself. The financial costs of law school dictates a disproportionate distribution of representation across the socio-economic spectrum, which is often reflected along ethnic and gender lines as well, especially when child care is involved. Law schools still aren't the most diverse places in the country, and the culture of exclusion often begins before the lawyers even get to the firm.
Law firms should take up the challenge and voluntarily disclose their diversity statistics, with the concerted goal of recruiting a diverse partnership (not just articling students) who seek to transform the entire culture of the firm. This is the only way that they will attract – and retain – the diverse talent that will help prepare them for the challenges of a global market.