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April 30, 2015 Articles

How In-House Counsel Can Promote LGBT Diversity in the Legal Profession

By Samuel L. Felker

Over the past several years, law firms in the United States have made great strides in promoting LGBT diversity. Most large law firms in the United States now express a commitment to LGBT diversity in the diversity section of their webpages. More importantly, many have adopted nondiscrimination policies, equalized employee benefits, and dedicated resources to the recruitment of LGBT law students and laterals. Many firms now include LGBT content in their diversity training to attack stereotypes and build cultural competency regarding LGBT issues. It is also very common now for law firms to have an affinity group (i.e., employee resource group or ERG) for LGBT attorneys. My firm, Baker Donelson, has such an affinity group for LGBT attorneys and staff, and we operate alongside the long-standing affinity groups and diversity initiatives for women and lawyers of color. It is fair to say that in recent years, LGBT diversity has become entrenched in the culture of major U.S. law firms, at least on the surface. 

To measure this cultural shift in law firms, one need only look to the Human Rights Campaign’s (HRC’s) annual Corporate Equality Index, which is widely regarded as the leading national benchmarking tool on policies and practices pertaining to LGBT employees. The HRC Index is a voluntary survey examining the extent to which employers demonstrate fully inclusive equal opportunity policies, equal employment benefits, organizational LGBT competency, a public commitment to LGBT equality, and responsible corporate citizenship. This year, 149 law firms, including a majority of the Am Law 200 firms, participated in the survey, and a record 89 received a perfect score of 100 and earned the distinction of “Best Places to Work for LGBT Equality.” An additional 36 law firms scored 90 percent. By comparison, in 2006, when law firms were first requested to participate, only 12 law firms scored 100. That number jumped to 64 in 2009, with law firms for the first time eclipsing the number of businesses who received the top score in the banking and financial service sectors. The 2009 HRC Corporate Equality Index contained the following statement indicating that was a watershed year: “Law firms are highly competitive in their recruitment efforts for law school graduates, and are also held to increasing standards of diversity by their corporate clients. LGBT equality is an integral part of these efforts to recruit and retain top talent and cultivate clients.” 

I am not aware of any data to support the proposition that even today law firms regard LGBT equality as an integral part of their efforts to cultivate clients. However, there is good evidence that law firms have dramatically increased their recruitment of LGBT law students and laterals. The annual Lavender Law Career Fair, sponsored by the National LGBT Bar Association, demonstrates that virtually all of the major law firms in the United States are actively recruiting LGBT law students. Last year in New York at the Lavender Law Career Fair, 500 law students participated in the recruiting job fair, which offered the opportunity to interview with 142 law firms. Liz Youngblood, “Strength in Numbers,” LGBT Bar Talk (Dec. 10, 2014). The list of sponsoring law firms is impressive and includes the top 10 firms in the United States by revenue: Baker & McKenzie, Skadden Arps, Latham & Watkins, Hogan Lovells, Jones Day, Kirkland & Ellis, Sidley Austin, White & Case, Weil Gotshal, and Greenberg Traurig. It is also instructive to examine the advertisements by law firms in the 2014 Lavender Law Conference brochure. The advertisement by my firm contains the following statement about our commitment to LGBT diversity: “The best client service comes from a diverse legal team that works in harmony. That’s why we have devoted ourselves to striking up the band for diversity and inclusion—because despite our differences, when we work together, the music sounds that much sweeter.” Here are some other advertising statements by sponsoring law firms: 

• “Morrison & Foerster is proud to support the Lavender Law Conference and its mission to promote LGBT diversity within the legal profession.”
• “At [Sullivan & Cromwell], we believe that attracting, developing and retaining the finest lawyers of all backgrounds is vital to providing the highest level of service to our clients.”
• “At Covington, we recognize the differences among us as an asset and a source of strength. Promotion of diversity is never complete and we strive to lead by example.”
• “Sidley is proud to support the Lavender Law Conference and Career Fair and to be a progressive proponent of law firm diversity and inclusion.”

Although not the focus of this article, it is important to also recognize that corporate America is far ahead of the legal profession in promoting LGBT diversity. In the 2015 HRC Corporate Equality Index, it is reported that 89 percent of the Fortune 500 companies include sexual orientation in their nondiscrimination policies. The report also contains this overview: “In this year’s national benchmarking report, an all-time record of 366 major businesses—spanning nearly every industry and geography—earned a top score of 100 percent and the coveted distinction of ‘Best Places to Work for LGBT Equality.’” By comparison, a decade ago when the HRC Index was first issued, only 13 businesses achieved a top score of 100 percent, and in 2012 just 189 businesses earned top marks. This data graphically demonstrates a watershed cultural shift in corporate America in recent years. 

Despite this remarkable progress in the legal profession and corporate America, significant work remains to be done to fully integrate out LGBT attorneys into law firms. Diversity trainers will tell you that LGBT content in diversity training programs in law firms will routinely draw the strongest reactions from participants. Additionally, recent scholarly work in the field of implicit bias emphasizes the need to address head-on LGBT stereotypes and biases that exist in the workplace, including law firms. 

In-house counsel are in an excellent position to push for continued progress in LGBT diversity in the legal profession. After all, law firms realize there is a business case for diversity and, if they are to be successful, they must listen to and adapt to their client’s needs. In-house counsel can send the message that they expect their company’s commitment to LGBT diversity to carry over to the law firm’s handling of their legal matters, and that the law firm should mirror the diversity the client embraces in its corporate culture. 

Here are some suggestions for how in-house counsel can send that message: 

1. Let your outside law firms know that LGBT diversity is important to your business. It is now routine for many corporate clients to include in requests for proposal (RFPs) a question about the law firm’s diversity practices. This is an excellent opportunity for in-house counsel to send a message that LBGT diversity is a factor that will be considered when selecting outside counsel. Beyond the RFP process, in-house counsel should inquire about the law firm’s diversity practices, for example how it scored on the HRC Index and whether it recruited at Lavender Law. This sends a strong message that LGBT diversity is important to the corporate client, and that the client wants its law firm to share its commitment to diversity. 

2. Engage your important outside counsel partners to join in your company’s LGBT diversity efforts. This can be done in a variety of ways, depending on the diversity activities of the client. For example, if the company’s ERG participates in a local Pride event or similar activity, in-house counsel should ask the law firm to participate. Or, the law firm’s LGBT lawyers can be invited to participate in one of the many in-house events sponsored by the ERG. The main point is that by reaching out to the law firm, in-house counsel sends a message that LGBT diversity is important. After many years of private practice in two large firms, I can assure you that the law firms listen. 

3. Take an interest in and make a point to work with LGBT attorneys at the firm you employ. In-house counsel should think of ways to reach out to the LGBT attorneys who work in the law firms they regularly employ. An example would be sponsoring a “meet and greet” for LGBT attorneys to network with the legal department. Many corporations have LGBT ERGs, and a joint networking event for LGBT employees and attorneys at both companies would provide an excellent opportunity for the LGBT attorneys in the law firm to get to know the client. Also, if the company offers diversity internships or employment opportunities, in-house counsel should inquire of law firms whether there are LGBT associates who may be interested in applying. Again, this reinforces to the law firm that the client is committed to LGBT diversity. 

4. Monitor and enforce the extent to which your partner firms assign LGBT attorneys to work on your matters. It is apparent that the majority of U.S. law firms espouse commitment to LGBT diversity, but in-house counsel can make sure they “walk the walk” by assigning LGBT attorneys to handle significant matters. Once matters are assigned to a law firm, in-house counsel should monitor that firm’s diversity commitment by periodically asking the extent to which diverse attorneys (including LGBT) have been assigned to and billed on matters. It is crucial to move beyond the RFP stage (when LGBT diversity efforts are reported and espoused by the law firm) and to the day-to-day handling of matters.

Substantial progress in LGBT inclusion has been made in the legal profession, but much more is possible. By following these simple steps, in-house counsel can send a strong message to law firms that the client expects the firm’s commitment to LGBT diversity to have legs. By demonstrating commitment to LGBT diversity in the profession, in-house counsel can send a strong message that there is, in fact, a strong business case for LGBT diversity.

Keywords: litigation, LGBT, diversity, nondiscrimination policy, employee resource group, in-house counsel

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