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controlling litigation, trying cases, rising in the ranks, and becoming a major player in the firm’s financial decisions remains elusive for many female attorneys. Interestingly, the discussion regarding the large number of female students in law school compared to the dearth of female lawyers in leadership capacities often centers around the premise that women self-select into “of counsel,” government sector, or non-partner track careers to accommodate work-life balance.6 This analysis often fails to address the structural barriers which exist and which limit leadership roles for women. Black and Latino lawyers also face significant barriers in competing in the legal market.7 According to the National Association for Law Placement (“NALP”), black lawyers go into private practice at a lower rate than any other group.8 According to the Hispanic National Bar Association the number of Latino or Hispanic attorneys in the profession is only five percent (5%), and shockingly, less than two percent (2%) of those lawyers are women. This number is astounding considering the fact that Latinos account for approximately eighteen percent (18%) of the U.S. population. Unique issues also face women of color in the profession. As noted by Pamela J. Roberts, former chair of the ABA Commission on Women in the Profession: “women of color experience a double whammy of gender and race, unlike white women or even men of color who share at least one of these characteristics (gender or race) with those in the upper strata of management.”9 Women of color are often mistaken for secretaries, court reporters, or paralegals.10 The ABA Commission on Women in the Profession of the American Bar Association issued a report entitled “Visible Invisibility: Women of Color in Law Firms.” The report provides: Women of color often became stuck in dead-end assignments, so that as third- and fourth-year associates, their experience lagged behind their white male counterparts, limiting their advancement potential and career trajectories. Forty- four percent of women of color but only 2% of white men reported having been denied desirable assignments. Differential assignments, in turn, affected the ability of women of color to meet the number of billable hours required of them. Forty-six percent of women of color but 58% of white men were able to meet required billable hours. So, what fuels such bleak diversity realities in the 21st century, and what can we do as law firm leaders to shift the numbers? Different Approaches to the Diversifying Law Firms Creating an effective diversity program is complex, and there are many schools of thought regarding a successful path to ensuring diversity. Diversity One school of thought dismisses diversity-focused hiring and retention strategies, and focuses rather on “equality hiring;” or the hiring, in theory, of those who are qualified regardless of color, race, religion, disability status, sexual orientation or gender. Advocates of this plan often feel that a reliance on fixed diversity programming (1) creates a stigma which compromises the accomplishments and true qualifications of diverse attorneys;11 (2) creates an unfair advantage for diverse lawyers; and (3) compromises traditional principles of equality. Yet, “this structural analysis benefits from the work of scholars who have explored the ‘systems and structures that produce and perpetuate racial disadvantage’ and does not account for the structural norms which have created the lack of diversity in the first place.”12 This approach may also fail to address the implicit bias issue, which is discussed in detail below, as well as the issue of homophily. Homophily is the tendency of individuals to associate and bond with similar individuals – often on the basis of race, culture, religion, or gender.13 While a common playing field approach is to be desired, diverse attorneys do not own the majority of firms nationally, do not traditionally come from generations of attorneys, and do not, generally have the widespread means to hire other diverse attorneys. While progressive associations, such as The National Association of Minority & Women Owned Law Firms, promote diversity by fostering relationships among diverse firms, the majority of lawyers and private sector legal employers are white males. As such, the implicit bias and homophily concerns must be addressed in majority private sector firms if diversity is to improve. As noted by Kathleen Nalty, author Birmingham Bar Bulletin/ Winter 2017 11


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