Diversity without inclusivity is mere tokenism

A guest post by Mary Young, a partner at Kingsley Napley and a committee member of the London Solicitors Litigation Association

Young: Fallacy of the unencumbered worker

Baroness Hale’s reign as President of the Supreme Court ended earlier this year. She was the first woman to hold the position, and in one of her final interviews before leaving the role, she commented on some of the persistently outdated parts of the legal profession.

The headlines focused on high heels as a compulsory part of office dress for women, and the disparate values placed on male and female barristers for equivalent work, but as demonstrated by gender pay gaps and the low percentages of female partners in top 100 law firms, the problem runs deeper.

The unencumbered worker

Joan Acker has been writing since the 1990s about the gendered nature of organisations and the idea of the ‘unencumbered worker’.

Imagine a colleague who is able to completely separate his working life from his private life. This colleague does not have to spend any of his working day thinking about booking appointments with dentists, paying bills or working out what to feed the family and whether any ingredients need to be bought on the way home.

He would not have to take a call from his children’s school about sickness, head-lice or lunch money, let alone a day off at short notice because of childcare (or other caring) responsibilities. He is unencumbered of all distractions outside the tasks he is employed to complete.

In most organisations, jobs, hierarchies and remuneration are built around tasks and roles which are based on this idea of an unencumbered worker whose time is entirely devoted to the organisation. Jobs are given values based on how they fit into the structure of the organisation and the value they bring to the organisation.

That value is typically measured in terms of financial input. In a law firm, that input usually comprises chargeable hours, bills rendered or clients and cases introduced to the firm.

Requiring an employee or partner to commit their time and energy entirely to the firm in order to put in the hours during the day, and attend networking events during the evening, necessarily requires a freedom which realistically excludes anyone who has caring commitments and cannot delegate, or substantially share, those commitments with somebody else.

Despite increased sharing of what might be considered traditional family roles, women still predominantly take on a family’s caring roles and responsibilities.

This, coupled with the structure of most organisations, inevitably creates and sustains an environment in which women are disadvantaged in the workplace unless they avoid caring roles or have significant support (paid or otherwise) in their private lives.

The 30% Club

Sociological studies show that in order to start having an influence, an under-represented group must reach 30% of the wider organisation.

At that point the under-represented group becomes normalised and it becomes necessary to consider its needs and requirements. It effectively becomes big enough to make enough noise to be heard by the powers that be.

I find myself in an extremely privileged position at a firm where more than 50% of the partnership is female.

The day-to-day impact of this is the fostering of an atmosphere in which people are valued for who they are rather than the role they fulfil, and no one is seen merely in terms of the chargeable hours they record or the time they spend at their desk. Flexible working is a reality and working from home has lost its ‘air quotes’.

Until under-represented groups reach a critical mass (of 30%) in partnerships, boards and chambers, problems of sexism and exclusionary working practices in the legal profession will not be eradicated, because the people making the decisions simply will not see them as problems.

Until the profession as a whole is able to see the value of all aspects of the work we do, the fallacy of the unencumbered worker will not be left behind.

A side effect of this, which it is worth considering with one eye on the general wellbeing of colleagues, is that any competition (whether conscious or otherwise) to be seen as the least encumbered worker, by recording the most hours and being the most available person in the team, is likely to be a race to the bottom in terms of mental and physical health.

Our clients are increasingly demanding diversity in the law firms they instruct. This isn’t merely a presentational point – it’s because diversity of backgrounds, races, genders, sexualities, abilities and ages makes for diversity of opinions, perspectives and approaches, which in turn makes for stronger, more creative teams.

But diversity without inclusivity is mere tokenism. No one would want to be the sole representative of their group in an organisation, particularly where the requirements of the organisation are impossible to meet when combined with demands on that person’s time outside of work.

To achieve a more diverse and inclusive profession and to finally put behind us outdated approaches, such as the ones highlighted by Baroness Hale, we need a wholesale re-evaluation of the profession’s structures, values and attitudes.

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