July/August 2020

The Thriving Lawyer

Enabling Lawyer Well-Being Through Diversity and Inclusion Practices

Anne Brafford

Kudos go to the many legal employers that have taken much-needed steps to improve well-being in the profession. So far, most have focused on teaching lawyers strategies to toughen up or boost their individual skills—like stress management, mindfulness, emotional intelligence, and physical activity and nutrition. These all are very important to lawyer well-being, and they’re a good place for organizations to start. This individual-level focus, though, leaves unaddressed the complexity of well-being, including the role of systemic and organizational issues. Lawyers are most likely to be able to fulfill their potential—to be and feel their best—when their workplace cultures help them thrive. One chronic, systemic problem to which the legal profession has not yet given enough attention as a well-being obstacle is the lack of diversity and inclusion, which uniquely impacts the well-being of women and diverse lawyers.

That the legal profession has a diversity problem is not news. For example, the headline of a 2015 opinion piece in the Washington Post written by Deborah Rhode leveled a harsh criticism: “Law is the least diverse profession in the nation. And lawyers aren’t doing enough to change that.” The critique is supported by data reflecting persistently low representation of women and people of color in the top echelons of law firms, law school dean’s offices and the federal judiciary. The lack of diversity and inclusion has numerous negative consequences for the profession—including creating significant obstacles for women and diverse lawyers to be their best at work.

Defining Lawyer Well-Being.

Our goal for lawyer well-being initiatives should be optimal functioning, which includes not only psychological health (e.g., positive emotions, vitality, energy, absence of mental illness) but also interpersonal and intrapersonal growth; positive attitudes toward others, their job and the organization (e.g., job satisfaction, organizational commitment, engagement); as well as effective work behaviors (e.g., performance, proactivity, collaboration). Science points to multiple reasons that women and diverse lawyers may experience greater obstacles to optimal functioning in the legal profession, some of which are discussed next.

Obstacles for Fulfilling the Powerful Need for Connection and Belonging.

Studies indicate that feeling cared for and a sense of belonging in groups that matter to us are basic human needs. The science suggests that these needs must be fulfilled for peak functioning and psychological and physical health.

In the dominant work cultures of many legal employers, which reflect the values and behavioral patterns of their white male leaders, women and diverse lawyers may struggle to develop a sense of fit and belonging compared to their white male colleagues. One reason for this is the well-established phenomenon of homophily. This describes a pervasive human tendency to be most attracted to others whom we perceive to be like ourselves—with attributes like gender and race being especially salient.

This in-group preference is thought to be a more fundamental motive than dislike of out-group members, and research frequently has found it to be a reliable and powerful contributor to differential treatment. The homophily preference affects, among other things, allocation of resources, attitudes and friendships. The result is that women and diverse lawyers may experience an interpersonally “chilly” climate at work that makes them feel unwelcome and depletes their sense of belonging.

Obstacles for Fulfilling the Need for Inclusion.

This vital sense of belonging is one component of the broader need for inclusion. Inclusion has two dimensions that encompass people’s desire both to belong and to be distinct and autonomous. Inclusion flows from an experience of “optimal distinctiveness”—of feeling supported and valued for one’s unique attributes and strengths while also feeling like an important member of the group. Notably, the experience of inclusion is strongly related to well-being for everyone, and all experience psychological distress when they are deprived of it. But women and diverse lawyers are much more likely to feel like outsiders in organizations where top leaders (who shape workplace culture) are mostly white men.

Corrosive Effects Caused by Lack of Inclusion.

Our basic needs for connection, belonging and inclusion make us all highly sensitive to environmental cues about our social value. Our brains vigilantly scan for cues about whether others value and respect us. You can think of everyone as having a powerful internal antenna that lights up as red (rejection!) or green (acceptance!) with every interpersonal encounter. Too many red lights are corrosive to optimal functioning. Some of the pathways through which perceived social exclusion can harm women and diverse lawyers’ health and performance include the following:

  • Lack of Belonging. Workplace studies have found that employees’ perceptions that they do not belong—i.e., that they are not accepted, respected or supported—are related to depressive symptoms, alcohol and drug use and suicidal thinking.
  • Masked Authenticity. Women and diverse lawyers may feel more pressure to alter or mute their unique values or perspectives to fit into an organization’s dominant culture. This masking process can cause psychological distress, including depressive symptoms, emotional exhaustion and anxiety.
  • Perceived Unfairness. Women and diverse lawyers also may perceive more frequent unfair treatment, which can damage their sense of belonging and beliefs that they’re respected and valued. Perceived unfairness is strongly related to depressive symptoms and other mental and physical health conditions. The negative impact is even stronger for women who tend to be more oriented toward social cues (which means they tend to detect more instances of unfairness) and have a greater psychological stress response to perceived unfairness.
  • Perceived Discrimination. Not surprisingly, perceptions of discrimination toward one’s self and others also damage optimal functioning—harming both physical and mental health as well as job attitudes.
  • The Power of Expectations. Workplaces that thwart women and diverse lawyers’ needs for connection, belonging and inclusion can trigger thoughts and behaviors that not only harm psychological health but that also impair performance (which, in turn, can harm psychological well-being). Multiple social psychology theories (e.g., relational efficacy beliefs model, expectations states theory, social identity threat) all describe mechanisms through which other people’s beliefs about us powerfully impact our performance and well-being. Organizational cultures dominated by white men can (often unintentionally and non-consciously) communicate lower expectations for women and diverse lawyers. When significant others (e.g., supervising lawyers, mentors, etc.) communicate high expectations for us, this can boost our confidence and effectiveness and can promote coping efforts and perseverance. On the other hand, a long line of studies has found that significant others’ low expectations for us can infect our own beliefs about ourselves and devastate performance and well-being.
  • Patronizing Feedback. Research has found that women are more likely than men to receive patronizing feedback that is less challenging, less tied to business outcomes and less critical of performance. The ABA’s 2018 Bias Interrupter Report noted that lawyers of color experience this same problem—with over 40 percent of men of color and 35 percent of women of color reporting that they do not receive constructive feedback. The ABA report described a common phenomenon in which lawyers of color receive glowing performance reviews that fail to identify any specific need for improvement but then are passed over for promotion.

Conclusion

The above should leave little doubt that the line between inclusion and well-being initiatives is slim. The next stages of the lawyer well-being movement should include an acknowledgment of the complexity of well-being, including the important role of organizational cultures. Legal employers that care about promoting well-being and diversity in the legal profession should take seriously their responsibility for contributing to work environments in which all lawyers can thrive and perform their best.

Anne Brafford

Founder

Anne Brafford is a former BigLaw partner and the founder of Aspire, an educational and consultancy firm for the legal profession. She is a doctoral student in positive organizational psychology and is involved in multiple national-level initiatives focused on lawyer well-being. She is the author of Positive Professionals, which provides science-based guidance to aspiring positive law firms.

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