The Exclusionary Practice of Law
Why the legal profession fails at diversity and inclusion.
“Our criminal justice system needs reforming and the perfect person for the job may have dreadlocks. Meanwhile, you, an attorney, have encouraged them to cut their pride and dignity off so they can ‘fit in.’” @jastalkslaw (Attorney Jas, Twitter)
I read this tweet and it really bothered me. Not because of what it said, but because of what it signifies. What did it mean to “fit in”? Recently the legal profession has put a lot of emphasis on the buzzword “inclusion.” We simultaneously try to embrace the trends of inclusion while also trying to avoid the realities of what it implies — that there was a point in time when the legal profession was exclusive.
I shared the tweet with a friend, “Jane Doe” and we discussed the origin of this article. We talked a bit about our thoughts and feelings as it related to the concept of “fitting in.” We opined on how “fitting in” forces us to imitate the [societally prescribed] external image of a “lawyer.” In the years she’s been a valued asset to her firm, she’s believes “if [she] had shown up to [her] job interview without makeup, [her] hair not artificially [improved], [her] tan not artificially enhanced, regardless of the fact [she] had on a [tailored] suit and a good resume, [she] would not have gotten the job.”
Have we become a profession of profile? Do we continue to equate appearance with ability? A character and fitness couture? As Jane Doe stated, “the legal profession in general bases on your ability [to do competent] work on how you appear.” This sat with me. What defines my ability to other lawyers? Is it my three-piece suits or my earrings and tattoos? What about me, makes me “fit in”? Or is it that I don’t fit in that determines their impression?
Even with the dedication to inclusivity, I ask, is the legal profession still exclusive? I submit to you that it is. In 2019, the National Association of Law Placement reported, of 108,529 total lawyers, 36.33% are women, 16.98% are [people of color] (the percentage of lawyers who identify as Black is 5%), and only 8.73% are women [of color]. (2019 Report on Diversity in U.S. Law Firms. We aspire to increase our inclusivity, but it appears the profession only accept people who already “fit in”. [The percentages become disheartening as you compare by equity status.]
In law school admissions, we visit the schools where students’ parents are already doctors and lawyers, rather than visiting the schools that could benefit from exposure to the profession. Hiring committees exclude highly capable candidates based on likability or superficial qualities that have no bearing on a candidate’s ability to perform. When promoting internally, the most valuable associate is often overlooked because they are unable to participate in Thursday afternoon golf where the out-of-office deals and promises are being made.
How do we fix this? First, as a profession, stop prescribing a biased standard to the idea of a lawyer. I remember my time as a magistrate judge and the first thing most people would say when they saw me, “you’re not what I thought you’d look like.” My response, “what are judges supposed to look like?”
Google (or Bing) “images of lawyers” and view the images. What do you see? What you see is the societal standard created by exclusionary practices (if you try this on Oct. 15, 2020 or later, you will see a variety of lawyers thanks to a change in the algorithm that no longer favors white, male faces as the standard for images searches). If we want to be intentionally exposed to a different image we have to search “woman lawyer,” “Muslim lawyer,” “Black lawyer,” Hispanic lawyer.” [We have to put a condition or qualifier in front of the noun to signify something other than the generated standard.]
Secondly, stop putting your diverse employees on the “Diversity and Inclusion Committee,” but leaving them off of the “Executive Committee” or “Hiring Committee.” We profess inclusion but fail to include diverse employees on decision-making committees within our organization because they don’t “fit in with the culture and long-standing practices.” [Or the phasing “their expertise is more valuable elsewhere” is thrown out there.] We have to accept that not all lawyers will look or behave as the [institutional norms society continues to dictate and perpetuate]. Organizations have to also stop hiding behind the curtain of “meritocracy” to avoid the perceptions of bias and recognize not all opportunities are presented equitably to all persons.
Finally, stop being judgmental. Because a woman chooses to wear pants instead of a skirt does not make her too ambitious. A lawyer’s decision to wear bright-color ties or patterned shirts does not have any bearing on his or her ability to perform. The names “Daquan,” “Muhammed,” or “Sally” are not representative of one’s ability to add value to an organization. A denial of a lawyer’s ability based on superficial conditions says less about the lawyer and reveals more about the person making the assessment or judgment.
The legal profession is one of tradition, prestige, and integrity. However, these words are not synonymous with inflexibility, prejudice, and exclusion. We cannot continue to judge people because they do not fit ideal image of a “capable lawyer” while professing greater inclusivity. The profession hasn’t become less prestigious, it was built in a nation that was never tolerant of difference or use to having to share what historically provided the comfort and safety of intellectual and socioeconomic elitism. Being different does not make one incompetent or unprofessional. Being Black does not make one incompetent or unprofessional. Being a woman does not make one incompetent or unprofessional. Being an immigrant does not make one incompetent or unprofessional. Being LGBTQ+ does not make one incompetent or unprofessional. Stop prescribing to the subjective, societal standard of professional behavior based on a history of exclusionary norms and practice and appreciate that using diverse cultural norms or lived personal experiences within the workplace does not make one incompetent or unprofessional.
“The profession hasn’t become less prestigious, it was built in a nation that was never tolerant of difference or used to having to share what historically provided the comfort and safety of intellectual and socioeconomic elitism.”
The legal profession is not immune from exclusionary practices. It was built on exclusion and is not absolved from its responsibility in the minuscule diverse representation caused by practices that continue to promote historically advantaged populations while disadvantaging others. As a profession, judge not, those who have endured the grind and the rigor to have their name added to a State Bar’s roster of capable and competent lawyers.
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