The focus of diversity in the legal profession is shifting to include cultural change in different areas.
Lack of diversity in the legal profession has been discussed for many years. LIV president Steven Sapountsis addressed the issue in a recent blog post (http://tinyurl.com/zp83t44). There has been a strong focus on improving gender diversity, including the Law Council of Australia Equitable Briefing Policy (http://tinyurl.com/hc2wrfz), which seeks to promote women in the law. While the struggle for equality between male and female practitioners is ongoing, what is the future for diversity in the legal profession?
Lesbian, gay, bisexual, transgender and intersex (LGBTI) issues have been explored in “Diversity’s new agenda” (LIJ, April 2013). With the ongoing discussion about marriage equality, it is easy to see that LGBTI equality is still a difficult issue for the public at large as well as the legal profession. Lawyer Lee Carnie of the LGBTI Rights Unit at the Human Rights Law Centre views the issue of diversity (LGBTI and otherwise) as related to traditional perceptions of lawyers as straight, white men. She remembers considering whether listing on her resume her role as queer officer of the Melbourne University Law School Students Society, a position she was proud to hold, would put off future employers. A recent US study (http://tinyurl.com/he8rzep) has shown that women who include LGBTI related work experience on their resumes were 30 per cent less likely to receive a call-back.
Some firms are moving to a blind hiring process where elements that identify the candidate such as name and gender are removed. While this may address some elements of unconscious bias, Ms Carnie highlighted that it doesn’t address all the factors that mean applicants do not face a level playing field. For example, law students who need to work long hours to financially support themselves often can’t afford to demonstrate their commitment through extra-curricular activities in the same way as students who do not face the same financial constraints.
Ms Carnie noted that cultural change within firms was needed – a firm-wide cultural shift where everyone takes ownership of social inclusion and a work culture that embraces diversity. Change solely at a leadership or policy level may mean that individuals do not internalise the message as they do not feel they have any ownership of changes made without accompanying consultation and education.
Employers can look to Pride and Diversity – a not-for-profit employer support program that can assist employers to be more inclusive. Employers can also reach out to Transgender Victoria which offers training on fostering awareness of the issues facing transgender and gender diverse people, including whether firms should build unisex bathrooms. Another option is LIVout, the LGBTIQ component of the Diversity Taskforce at the LIV.
Ms Carnie suggests there are also more public commitments law firms can make when it comes to supporting LGBTI diversity. These include dedicating pro bono resources to support LGBTI advocacy, public interest strategic litigation and voicing public support for marriage equality. Importantly, Ms Carnie highlighted the economic benefits for firms encouraging diversity. Potential and existing clients look at the ethical choices firms are making and any suggestion of discrimination is damaging to a firm’s brand. Beyond the potential negatives of a lack of diversity, a broadly diverse group of employees adds new and fresh ideas coming from a wide range of experiences and contact with potential clients.
In 2013 Reynah Tang, the first LIV president of Asian descent, created the Asian Australian Lawyers Association (AALA). Its goal is to “create greater cultural diversity within the senior ranks of the legal profession”. In 2015 the AALA released a cultural diversity report which indicated that, while Asian Australians accounted for almost 10 per cent of the Australian population, only 3.1 per cent of partners at law firms, 1.6 per cent of barristers and 0.8 per cent of the judiciary were of Asian background. The AALA believes that the lack of representation at senior levels of the legal profession, despite strong representation at more junior levels, indicates that the pipeline theory (where increased numbers of junior lawyers of Asian background will inevitably lead to more senior practitioners) is not working. Increasing diversity is not simply “a matter of time” and, echoing the sentiments of the LGBTI community, affirmative action is required.
AALA president Tuanh Nguyen and secretary Barton Wu explained that there was still a lack of recognition of the issue of cultural diversity and that the discussion was many years behind that of gender equality. While all diversity and inclusion issues are complex, they noted that it is easier to identify a lack of gender diversity at the senior ranks of the legal profession, whereas cultural diversity issues are more nuanced and complex due to the difficulties in defining various cultural groups. Further, the barriers creating the lack of diverse cultural representation tend to be more difficult to identify and define. Measuring outcomes and defining success, therefore, becomes a challenging exercise in the context of cultural diversity.
Ms Nguyen and Mr Wu noted that the lack of senior lawyers of Asian background has led to a lack of role models for junior lawyers. They agree that part of the issue is the traditional view of a senior lawyer as a privileged, Caucasian male. They also noted that particular cultural traits (such as deference to seniority) may give rise to a false impression that Asian Australian lawyers would not make good leaders.
Ms Nguyen and Mr Wu emphasised the commercial value of diversity for law firms.
Australia has close links to Asia, both geographically and economically, and the value of Asian Australian lawyers to tap into that market should be acknowledged and taken advantage of. They noted that the Diversity Council Australia provides useful guidance for employers on implementing internal policies and measures to foster diversity and improve hiring practices.
For junior practitioners, Ms Nguyen recommended building networks at an early stage as successful professional relationships can take time to develop. She also highlighted the AALA mentoring program and noted that sponsorship from senior members of the legal profession to support junior lawyers in their advancement is vital. She encouraged junior lawyers to step out of their comfort zone, put themselves forward in the workplace, and agitate for change.
While diversity in the legal profession is improving, the focus of increased diversity is now shifting beyond gender to more complex and varied issues. Lawyers at every level can contribute to change through being their own best advocate and emphasising the value their individuality brings to their employer.
Andrea de Souza is a lawyer at Minter Ellison specialising in medical law. She is the co-chair of the YL Editorial Committee.