The data on LGBT lawyers is similar in some respects to the data for women and racial minorities. These groups are also significantly underrepresented among the partner ranks, with firms reporting that only 22 percent of partners are women and eight percent are a racial or ethnic minority. Id. And even when women or minorities achieve the rank of partner, their compensation is generally less than their peers. See, e.g., ABA Commission on Women in the Profession, A Current Glance at Women in the Law, at 6 (Jan. 2017) ("At the median, the typical female equity partner in the 200 largest firms earns 80 percent of the compensation earned by the typical male partner.").
Unlike women and racial minorities, LGBT attorneys in many U.S. jurisdictions face an additional hurdle—they may be subject to adverse employment action based on their sexual orientation or gender identity, without adverse legal consequences for their employers. More than half of U.S. states do not have an antidiscrimination statute that includes sexual orientation, and fewer still prohibit discrimination because of gender identity. Human Rights Campaign, Maps of State Laws & Policies (Mar. 2017). After Obergefell provided that all states must permit same-sex marriage, this situation creates, in the words of the Seventh Circuit, "a paradoxical legal landscape in which a person can be married on a Saturday and then fired on Monday for just that act." Hively v. Ivy Tech Cmty. Coll., 830 F.3d 698, 714 (7th Cir. 2016), reh'g granted, 2016 U.S. App. LEXIS 20302 (Oct. 11, 2016). Thus, it seems likely that at least some LGBT attorneys may remain in the closet because they are fearful that identifying as LGBT could lead to adverse consequences from their employers.
However, the possibility of overt discrimination does not offer a complete explanation for the lagging numbers of LGBT lawyers in law firms. In the most recent edition of the HRC Corporate Equality Index, a majority of law firms received a perfect score. Human Rights Campaign, Corporate Equality Index 2017. Yet differences persist. In a 2011 law review article, Professor Deborah L. Rhode of Stanford Law School identified factors that may account for the differences experienced by women and racial minorities within law firms, despite longstanding statutory protections for those groups. Deborah L. Rhode, From Platitudes to Priorities: Diversity and Gender Equity in Law Firms, 24 Geo. J. Legal Ethics 1041 (2011). Although Professor Rhode's article focused on women and minorities, several of the same factors affect LGBT attorneys.
First, the competence and commitment of women and minorities are more likely to be questioned. Id. at 1046. In addition, minorities in many firms are held to even more stringent and unforgiving standards than other lawyers. Minority Corporate Counsel Association, Sustaining Pathways to Diversity: The Next Steps in Understanding & Increasing Diversity & Inclusion in Large Law Firms (2009), at 4. To the extent that law firm partners believe that LGBT associates are offered employment solely because of law firm policies that encourage the hiring of LGBT law students, they may receive similar disparate treatment once they enter the law firm ranks. See id. at 6.
Second, Professor Rhode notes that implicit in-group favoritism within law firms disadvantages women and minorities. Rhode, 25 Geo. L. Legal Ethics at 1053. In law firm settings, racial and ethnic minorities report feeling marginalized, while women experience exclusion from the "old boys" network. Similar bias could extend to LGBT lawyers and cause them to receive fewer opportunities than other lawyers. For example, a partner may choose a heterosexual, cisgender associate over an LGBT associate out of an implicit fear that a client would not interact well with an LGBT attorney. Fear of being marginalized can also cause gay and lesbian attorneys to modulate their behavior to minimize the visibility of their orientation, or to "cover" their identity. See Kenji Yoshino, Covering, 111 Yale L.J. 769 (2002). Over time, the demand to cover and conform may cause LGBT attorneys to grow weary of the struggle and leave the firm. See Rhode, 24 Geo. L. Legal Ethics at 1054 (describing similar effect on women).
Third, Professor Rhode notes that minorities and women who raise diversity issues often fear backlash. Id. at 1058. LGBT attorneys may also fear that raising issues relating to their status will lead to backlash. They may not want to appear to be flaunting their homosexual or transgender status. Yoshino, 111 Yale L.J. at 776. Indeed, in Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) (en banc), the court affirmed dismissal of an employment discrimination case brought by an attorney who had been terminated by the Georgia Attorney General after she participated in a same-sex wedding ceremony. Among its reasons, the court noted that the attorney "did not appreciate the importance of appearances and the need to avoid bringing 'controversy' to the Department." Id. at 1105. Although approximately twenty years have passed since the Shahar decision, in some environments, LGBT attorneys may still be afraid that their coming out or displaying same-sex wedding photos will be seen as generating "controversy," to their detriment.
How can firms respond to these challenges? Professor Rhode notes that for women and minorities, diversity training, pipeline programs, and the formation of affinity groups generally had limited effects, though with some exceptions. Rhode, 24 Geo. J. Legal Ethics at 1070–71. Mentoring programs were, by contrast, among the most effective diversity strategies. Id. at 1071. "Effective mentoring relationships can enhance career skills, satisfaction, retention, and advancement." Id. Building effective mentoring relationships, however, can be tricky. Random assignment of mentees to mentors can lead to situations where minority attorneys are reluctant to raise diversity-related concerns with non-minority mentors. Junior attorneys also may fear approaching mentors with a diversity-related problem out of a fear that they are becoming a burden. Id. at 1072. Another challenge to formal mentoring programs is that regular reporting requirements can make the relationship feel like yet another administrative task. Id.
The Minority Corporate Counsel Association suggests several remedies, including the implementation of "upward reviews" so that junior lawyers can provide feedback on equitable professional development opportunities. MCCA, Sustaining Pathways to Diversity at 6. MCCA also calls on law firms to develop concrete action plans to address diversity and to include diversity when developing succession plans for top clients. According to MCCA, "Law firms should also recognize that a decrease in overt and explicit discrimination alone does not signal the elimination of all discrimination. Law firms should expand their definitions of and trainings on discrimination to include subtle forms of discrimination and disparate treatment that often have the same consequences for diverse lawyers as explicit discrimination." Id. at 38.
In short, while significant progress has been made on some LGBT civil rights issues, we have not yet reached full inclusion of LGBT attorneys within the bar. Law firms should recommit to diversity efforts until the numbers of LGBT attorneys reflect at least the numbers of self-identified LGBT individuals in the general population.