Black History Month 2016: How Far Have We Come?

To celebrate Black History Month in the USA, Chambers Diversity had the pleasure of talking to three inspirational black lawyers and diversity trailblazers. I found out about what Black History Month means to them, their experiences of the profession, and gauged opinions on what problems remain and how to tackle them.

It is hardly surprising to hear that, for all three of the lawyers I spoke to, Black History Month is a time to think about the struggles of their forebears: “It’s a time to reflect on those who have made sacrifices and given me the opportunity to be where I am today – I feel I stand on their shoulders,” says Jeanine Conley, Partner at Baker Hostetler. Laura Wilkinson, Partner at Weil, Gotshal & Manges, has a similar message: “It’s important, as a Black American, to take time to recognise the contributions and achievements of people of African descent.” The sense of paying homage to those who risked everything to create a more equal America is further remarked upon by Damien Atkins, General Counsel at Panasonic North America, who highlights the importance of those original trailblazers: “The struggles my parents, grandparents and great-grandparents faced, and the sacrifices they made, have allowed me to achieve whatever modicum of success I’ve had”.

Nor is it surprising that when I ask about the things that influenced them, similar themes are brought up. Laura happily admits to being a product of her youth: “I grew up in the 1960’s. Social justice is what drew me to law. Therefore, my role models include people like Thurgood Marshall and Martin Luther King Jr. I was also attracted by seeing that law could be an engine for social change.” It is an experience that also speaks to Jeanine as she immediately brings up her parents: “My mum desegregated her school. I learned from her what that was like and how difficult it was. My dad actually had a minor civil action when I was young and he won, which also sparked a lot of interest. If either of them had the means they may have ended up being lawyers as well.” It was, perhaps, the experience of the civil rights movement and the empowerment of black people in America that caused Damien’s parents to set high standards for him, and thus begin his path to success: “My family, for generations, has always stressed education and personal and professional achievement. Growing up in that atmosphere, it had a tremendous impact on my outlook.”

Jeanine Conley
S. Jeanine Conley, Partner, BakerHostetler LLP

It is from this shared experience of oppression, and rising above it, that Black Americans have developed such a strong sense of communal history. Jeanine draws attention to heroes such as Rosa ParksFrederick Douglass and George Washington Carver, “who may not have got as much attention as they deserve.” Laura Wilkinson agrees, acknowledging that “the broader community either doesn’t know, or may not recognise, all of the accomplishments and achievements of Black Americans.”

Unfortunately, this lack of recognition has not been consigned to the past. Black lawyers are still underrepresented in the legal profession, with the route to partner proving especially difficult, and wider societal issues of representation persisting, as highlighted by the current controversy around the Oscar nominations. What is clear is that Black History Month gives us an opportunity to raise the profile of people affecting positive change that the mainstream tends to gloss over. In fact, for Laura it goes beyond that: “I’m a life member and former General Counsel of The Association for the study of African American Life and History, which was founded by Dr. Carter G. Woodson. He started Negro History Week, which is now celebrated as Black History Month, so I have a deep connection with it.” It is exceedingly evident that, while February presents an opportunity to raise awareness, for Black Americans this is simply a way of life.

It should come as no surprise then, that there are specific challenges faced by both aspiring and practicing Black lawyers. For Damien, those unique issues are down to the fact that “the profession is based on an apprenticeship model.” Put simply, it is much harder to find a suitable role model if lawyers from a similar background that have achieved success are in the minority. While Damien acknowledges that every lawyer or aspiring lawyer will face specific challenges, he points out: “the way you learn how to lawyer, how to give advice and work with executives and stakeholders, is really through other lawyers.” Jeanine agrees that, “mentorship and sponsorship are key”, but also draws attention to some of the unconscious cultural issues: “It’s not uncommon for people who look alike to want to be around others like them. For the profession to change, people have to recognise the benefits of reaching out to others that don’t look like them and recognise that it’s for the benefit of the profession as a whole.” Laura echoes these observations and notes that: “Unconscious bias also plays a role in limiting sponsorship and mentorship relationships.”

Damien Atkins
Damien Atkins, General Counsel, Panasonic North America

Part of the problem, it seems, is the tendency for leaders in the profession to choose mentees and offer promotions to junior lawyers in their own image. Damien emphasises the importance of “getting in the path of people who have critical insight to success,” and establishing a “means-tested formula to success, established by people who walked the path you want to walk.” For Laura and Jeanine, facing the double-bind of being female and Black limits their access to successful predecessors even further, as Laura points out: “The specific challenge is that we are both female and Black. Each of those demographics faces challenges in the profession, because it is historically white, male-dominated in the US.”

It is encouraging, however, to hear that, in the main, the profession is now more accessible and inclusive for Black lawyers. While the statistics remain stubbornly low, Laura’s experiences have generally been of progress: “I’ve been practising for almost 30 years and I’ve seen significant changes in that time, both in terms of the absolute number of Black lawyers in the US, as well as the number of Black lawyers who have reached high ranks in the profession.” Damien builds upon this point, adding that “the profession is certainly more accessible because there’s so much more opportunity”. With more influential Black leaders than ever before, such as Loretta Lynch and Michelle Obama, it certainly appears that the culture in America is slowly changing. However, this cultural shift has perhaps not borne as much fruit as was hoped for. Damien points out that the challenges that still remain, exacerbated by the economic crash of 2008 and the consequent cutbacks to public education, are reasons why we haven’t reached “The Promised Land”.

In contrast, Jeanine believes that the reality of under-representation for Black lawyers indicates a lack of progress: “I wish I could say we’ve made extensive progress but I’ve seen the opposite. There is the continued attrition of Black and particularly Black, female attorneys.” While Jeanine also, partly, puts this down to the economic downturn, she also points towards the impact of diversity fatigue: “There was a point where there seemed to be more buy-in and people recognised that unconscious bias exists. People seemed to be starting to understand that legal entities are better, particularly with regard to the law, when there’s an array of different opinions coming to the table. We seem to have lost that.” The good news, however, is that the solution may lie in the cause. With such an intense focus on the bottom line in law firms and businesses, Jeanine makes sure that she is always up-to-date with the business case for diversity: “I’m constantly educating myself on the fact that there is a business case there. Bringing those studies to the forefront and reminding people, and really having them understand, that there is a business case is really important.”

Damien too, wants to see the profession acknowledge that greater diversity is beneficial for everyone, and that means everyone working together regardless of skin colour: “We did not build what we have here today on our own, it took a team effort. Particularly as Americans we get caught up in the image of the hero, and it’s just not true.” It is easy to see how, in such a competitive and elite profession, it is difficult to switch from this exclusive outlook. Laura agrees, adding that becoming more inclusive is the key to a more productive profession: “If you look back historically at how the inclusion of women and Black people in the profession has opened the doors to so much more talent, it’s a great example of how diversity and inclusion can expand the workforce and result in better outcomes for clients, because these diverse perspectives are available in the workplace.” What is required, according to Jeanine, is simply the will to make that change and take a step into the unknown: “Honestly, it hinges on that fear aspect.” She argues that, throughout history, the fear of the other has caused terrible things to happen, from the Holocaust to internment camps and slavery: “We have to recognise the benefits of what we can achieve when we work together as one.”

For Laura, one of the key ways we can work together is to have visible and available role models that aren’t necessarily cut from the same cloth: “Mentoring and sponsorship across differences would do a lot to help younger black lawyers and lawyers from other underrepresented communities as well.” Not only does Laura believe that having role models is important for inclusion, she argues diversity in the mentor-sponsor dynamic will “likely result not only in greater success for individuals, but also in achieving even better results for organisations.” Jeanine goes even further, suggesting that the best way for mentoring initiatives to make a difference is to “make individuals accountable in terms of pay or compensation.”

Laura Wilkinson
Laura Wilkinson, Partner, Weil, Gotshal & Manges LLP

Similarly, Damien argues that we need new strategies for recruiting lawyers to ensure we encourage a diverse range of candidates to enter the profession: “Too often we use a particular law school as a mark for competence. That’s not a real predictor of success. We need to alter the way we recruit to really test some of those things that are actually going to be critical to success.” There are various working models for how to achieve this, but something that had worked for Damien is to set skills tests that are directly relevant to the job during the application process because “those are more accurate indicators and predictors of success.”

This deeply ingrained tendency to hire and promote similar types of people is, of course, a bi-product of unconscious bias. Inherently difficult to understand, unconscious bias has been a divisive topic and often causes management to develop defensive attitudes. Laura is very clear that “everyone has unconscious biases and they can interplay on the side of the minority person and on the side of majority person, although in the legal profession more hiring and promotion decisions are influenced by the unconscious biases of the organisation’s leaders who, disproportionately, are not diverse.” However, by acknowledging that it plays a part on both sides, we can try to diffuse some of the angst that the topic of unconscious bias raises. According to Laura, training too, is essential: “Put some intention in the training, consciously address unconscious bias, show sensitivity and focus and it will show results over time.” Jeanine builds on this, adding that good training means “having individuals who have a background in what exactly unconscious bias is and can properly convey that, so that others don’t necessarily feel bad about it, or see it as a negative, and understand that we all have them.” Most importantly for Jeanine, however, is that it is an issue which is continually re-addressed – something that Damien agrees wholeheartedly with: “You can’t settle. You have to be restless and relentlessly pursue improvement and excellence.” In a similar vein, Damien brings up the concept of groupthink, the idea that a homogeneous group will inevitably arrive at the same decision, regardless of its benefit. He argues that for it to be effectively combated, we must “create an atmosphere in which people feel comfortable voicing opinions that challenge the dominant view.”

As the interviews draw to a close I am reminded of just how elite the legal profession is, and how that competitiveness disproportionately affects minority groups. But there are plenty of reasons to be positive and they all involve taking charge of your career from the start. For Jeanine, it’s about being “constantly proactive about getting yourself to the right place in your career, getting the right assignments and finding the right mentors.” Damien also stresses the importance of being aware, both of the profession you are entering and of yourself: “You have to do whatever you can to fortify yourself for competition, to make yourself resilient and valuable. At the end of the day, you’re competing with a multitude of people, some of them are going to be smarter than you or have a different skill-set. You have to do everything you can to increase your own personal value and marketability.” Don’t forget, however, that it is sometimes the simple things that make all the difference. For Laura, it’s all about relationships: “Make a habit of keeping in touch with friends from school, at all levels, and colleagues throughout your career because relationships are the foundation of the profession. Your friends and colleagues might become your clients, or the next person to refer you for a job. If you keep in touch with people, it has a multiplying effect in terms of your professional development.”

Black History Month may be drawing to a close for another year, but the issues that it evokes are everyday occurrences in the lives of Black Americans. Progress has been made but there is still an awful long way to go before there is true equality of opportunity and representation. The path to personal, professional and cultural achievement is long and difficult to navigate, but as Jeanine says: “Never ever forget, regardless of any criticism that you get, how you got there. Have faith in yourself and your abilities.”