New York Lawyer
April 8, 2004

Q:
I have a question somewhat related to the issue brought up last week. I am a white female and have been practicing in the trademark/copyright area for the last 14 years. I have never felt that my being a female has affected my opportunities in the practice of law. Therefore, I do not consider my gender all that relevant.

However, when pitching potential clients, clients will occasionally ask whether the firm I work for has women or minorities within the firm who can work on the matter because they are concerned about diversity. Like the woman in your question, I would find it offensive if I was chosen to work on a matter only because I am a woman. I have friends who are minorities who feel the same way. What is an appropriate response to questions of this nature?

I would like to be able to say that we pick the best lawyers for the project and many times the lawyer happens to be a female or a minority member, but we don't staff our lawyers based upon their gender or their racial background because we don't find these traits particularly relevant to their performance. However, I suspect this response would not be well received.

I am curious as to how you would answer this question if you were in my situation.

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A:

I think you have mistaken the point of the previous question. The woman in that question was not offended that she was selected to work on a matter only because she was African American; she was offended that she was being brought along for a pitch, but with no clear prospects about whether she would be staffed on the matter -- the definition of window dressing. That's a different matter than the one you raise.

Your central question seems a little disingenuous. What purpose do you think the client is trying to achieve by making their request? Obviously it's not meant to offend or insult anyone, but to emphasize the importance of diversity, both within their organization and for vendors and outsiders who want to do business with them. They have probably made a commitment to a core value of diversity and want to encourage that goal wherever possible and align themselves with like-minded individuals and organizations.

If your firm has made a successful effort to attract and retain women and minorities, you could reply, "Our firm has made a strong stand and commitment to diversity and it's evident in our numbers, which are significantly higher than at other law firms. On this particular matter, we don't have women or minorities available to work on it because they are concentrated in other areas. I'm happy to share with you our record related to diversity to show that this is a major priority for us."

On the other hand, it could be that your firm, like most, has a poor track record when it comes to retaining women and minorities, particularly among the more senior ranks. In that case, the client's request is not unfair or offensive, but instead an uncomfortable reminder that your firm isn't doing as well as it might in this area. Requests like these are less of a problem for firms that have made a concerted effort, versus those that haven't and are caught flat- footed when a client expresses particular concern.

The reality is that we are in transition period between the past (a virtually all-white-male business world) and the future (one that effortlessly includes women and minorities based on merit alone). During this transition time, some efforts to reach the goal may seem forced or inappropriate.

However, you have to ask yourself how better to advance the goal of diversity than to specifically measure inclusion. In the business world, an oft-repeated mantra is "what gets measured gets done." When the inclusion of women and minorities is ignored, it's easy for it to slide as a priority. When clients in particular demand it, however, magically it becomes more of a priority. Even so, law firms have been slow to feel any pressure to really address this issue.

Sincerely,
Holly English
Principal Consultant, Values at Work