“If you’re arguing that you’re better than most firms, it’s not a good argument. Because most firms have a very difficult time actually bringing real diversity and inclusion into those spaces.”

Tsedale Melaku quoted in New York Times

The recently published New York Times article discussing the very white and very male partnership class announced by Paul, Weiss, Rifkind, Wharton & Garrison, LLP in December 2018 has indeed put Paul, Weiss in the hot seat. So, what did I mean by my quote in this New York Times article? (See law firm photo here)

Several things came to mind as I read the article. I was, of course, very excited and waited with anticipation for what I believed would be a deep and thorough articulation of the disconnect between law firm diversity missions and the reality evidenced.

Timing
The timing of the article’s publication gave Paul, Weiss an opportunity to regroup, put plans into action, and explain the reasons why the partnership class was indeed all white, and practically all male. The firm was essentially able to engage in damage control, to save face at a time when diversity and inclusion efforts are touted as being intrinsically part of firm culture. Despite Paul, Weiss’ attempt to explain away their “outlier” new partner cohort, the justifications and the timing of those justifications seem to be an attempt to cloud the realities of systemic racial and gender imbalances that exist in elite law firms.

At Least We’re Better than the Rest
To simply say that Paul Weiss fares better than their peer firms is a weak argument that lacks any substantive reflections on the practices of the firm. At the end of the day being better than their peer institutions is a mere attempt to be perceived as the lesser evil. A mirage that has no tangible manifestation of a truly inclusive work environment that provides advancement opportunities for all. The idea that we celebrate firms for being slightly better than firms that are already doing terribly at affecting real substantive visible change at the top is not applaudable. What this does, in actuality, is it sets the bar very low and continues to maintain elite white male dominance.

Scorecards and Surveys
Paul, Weiss’ chairman, Brad Karp stated, “We’ve always been ranked at the very, very top of every survey.” To accept Paul, Weiss’ argument that their diversity track record garners accolades from varying surveys and scorecards implies that these measuring agencies take into account all critical information about diversity. Diversity scorecards often provide superficial representations of diversity that give law firms agency to ignore the underlying causes of low numbers of black and brown lawyers, particularly as it relates to retention and advancement.

Many scorecards and surveys incorporate statistics that include all lawyers of color and other marginalized identities in their assessment, including Hispanic/Latinx, Black/African American, Native Hawaiian/Other Pacific Islander, Asian, American Indian/Alaska Native, Multiracial, Persons with Disabilities, Openly LGBT, and Veteran. While this is useful in showcasing the numerical representation of marginalized groups in firms, it also increases the potential ranking of law firms that have low numbers of black and brown lawyers. If we were to examine black and Latinx partners specifically, we would find that they are severely underrepresented. We need to start challenging these surveys and scorecards to explicitly call out the dearth of black and brown partners, which will demand law firms to consider the visible racial and gender disparity evidenced in terms of retention and promotion. Surveys and scorecards should call attention to the need for improving diversity by highlighting the lack thereof, not celebrating the little that exists.

Everyone Is Diverse
Diversity can literally include everything, from race, gender, sexuality, class, political leanings, religious affiliation, ability, and more. Let’s actually be clear about what we are talking about and what is missing when we talk about diversity – racial and gender diversity. The fact that Paul, Weiss is a pioneer of diversity is not the argument. What stirs debate is the reality that having been the first firm to hire a black lawyer, male and female, the first to promote a woman to the partnership, a firm committed to fighting for justice and equality, why has it stalled in terms of their own progress? If they are so progressive, why is it difficult for black and brown lawyers to reach parity within their own ranks?

There’s More Work to Be Done
In the firm’s nearly 150-year history, Paul, Weiss elected its first black female partner in 2016. While an important milestone for the firm, having one black female partner is not a valid argument to demonstrate progress as compared to their peer firms. It is a way to control the narrative and to save face, when in reality there is still so much work to be done. I understand that progress is progress regardless of timing, but this certainly should not preclude the fact that there are systemic racial and gendered issues in law firms that prevent women and people of color from becoming partners. So while recruitment efforts over the years have improved to attract talent to the firms, the reality is that very few are actually able to rise to the rank of partner. The underlying reasons for that are multifaceted of which I discuss and explain in depth in my forthcoming book, You Don’t Look Like a Lawyer: Black Women and Systemic Gendered Racism.

Value, not Tolerance
One of the central weaknesses at the heart of elite institutions’ diversity efforts, which tend to focus more on hiring than retention, regardless of gender, is the notion that people of color are linked to low performance and affirmative action advantages. The insidious nature of white racial framing allow whites, and often people of color as well, to operate out of a frame that includes racist stereotypes, narratives, imageries, ideologies and emotions privileging whites over people of color. Consequently, this often leads some partners and senior associates to view women and people of color as unqualified, reinforcing the white racial frame and perpetuating racial and gender inequality. This is what shapes individual and institutional discriminatory practices that help to maintain elite white male dominance.

For example, white narratives of affirmative action, which suggest people of color are not qualified to be there in the first place, work to create discriminatory practices that exclude from access to the resources that support advancement. Resources in the form of substantive training, mentorship, social and professional networks, and most importantly, sponsorship are critical. Women and lawyers of color, like any professional, want to feel that their presence is valued, not tolerated. These lawyers do not want to feel like they are a part of a strategic marketing tool employed to signal diversity as core and intrinsic to the firm. Or that they are evidence of the firm succumbing to social pressure.

The Onus is on Us
Another, rather interesting, observation is that the article sourced a lot of information from current black partners in the firm. For example, Theodore V. Wells Jr., a nationally recognized prominent black partner at Paul, Weiss, said “I fear that African-American partners in big law are becoming an endangered species.” What is he supposed to say, as one of seven black partners out of 159 in the entire firm? Wells, along with other black partners including Patrick Campbell, David W. Brown, and Amran Hussein, are forced to publicly acknowledge Paul, Weiss’ deficiencies, while simultaneously working to soften the public relations nightmare and signaling diversity. All of these demands add invisible labor to what these partners are already burdened with, precisely because there are so few of them. This is one of the many nuanced experiences discussed by the black women lawyers interviewed in my forthcoming book. A disproportionate amount of responsibility often falls on women and racially subordinated partners due to the shortage of women and partners of color.

In Their Own Words
In conversing with several associates about their reaction to the article, this is what one former BigLaw associate stated:

It is mind blowing how the onus is put on disenfranchised (highly educated) professionals to spontaneously become whistleblowers. Without any of the whistleblower or collective bargaining protections.

Another poignantly stated,

Obviously, the vast majority of women and people of color will not come forward out of fear of retribution, or imposter syndrome, or racial Post Traumatic Stress Disorder (PTSD). This allows firms to continue thinking that this is not a serious problem worth addressing given that few lawyers were put on a public platform to admit grievances that could very well be detrimental to their employment and opportunity.

Reproducing and Maintaining the Status Quo
What is clear is that Paul, Weiss, whether they would like to admit it or not, engages in reproducing and maintaining the status quo. That is why in 2019 the majority of partners and associates are white, and male. This ensures that the pipeline is saturated with people that not only look like the top, but also learn to adopt the firm’s culture and to do business as usual. To invest time and resources into people of color is a way to share the wealth and foster true competition among all races. The coveted law firm partnership is in fact a means to create the foundation for generational wealth. And that as it stands, appears to be reserved for whites, and mainly males. If you look very carefully at who made partner – they are mostly laterals, mostly did not do the work of lawyering in Paul, Weiss for the 10-14 years prior to walking into a partnership position. The one woman promoted worked up through the ranks from associate, to senior associate, counsel and then partner, a journey that took a little over thirteen years. So it is still all the women and people of color who are doing the actual work — but the white men are taking home the money.

Comprehending and acknowledging how elite white men create, control, and reproduce a racialized system run by white male actors is imperative to understanding the experiences of women and people of color, regardless of industry. Finally, and to be absolutely clear, Paul, Weiss has made a grand effort to win accolades for diversity. So, if they feel “singled out” for falling down on their promise – they should be disproportionately lambasted. As one of the many former BigLaw associates who aspired to be partner but was met with disinterest, lack of opportunity for development, mentor-less, sponsor-less, and exclusionary practices clearly states: “The emperor has no clothes – and still no one is willing to tell him.”

Tsedale M. Melaku, Ph.D. is a sociologist at The Graduate Center, CUNY and author of the forthcoming book, You Don’t Look Like a Lawyer: Black Women and Systemic Gendered Racism to be released in April 2019. I am at @TsedaleMelaku