Busy doing nothing: An exploration of the disconnect between gender equity issues faced by Large law firms in the UK and the diversity management initiatives devised to address them.

Busy doing nothing: An exploration of the disconnect between gender equity issues faced by Large law firms in the UK and the diversity management initiatives devised to address them.

Paper for presentation to the symposium on Stein Law School, New York 16-17 October 2014.

Savita Kumra, Senior Lecturer, Brunel Business School.

Introduction

Women’s participation in global law firms: One step forward and two steps back?

There is little doubt that the professional services could be considered a success story in respect of the increased participation of women in their ranks. Across the professional services, we have seen increasing numbers of women entrants with notable participation rates in law, accountancy and management consultancy. As Bolton and Muzio

note: ‘There seems little doubt that women have made huge progress; numerically dominating areas of the labour market and entering and succeeding in previously male dominated occupations and professional groups’. Thus in the UK a law society poll

shows that the number of female solicitors has more than quadrupled over the past decade, and the percentage of women in the profession more than doubled, from 15% in 1980 to 38% in 2000. Universities also note an increase in numbers, with women comprising 51% of law students and the number set to increase further

. A similar position is reported in the United States, where women comprise 49% of law students

(compared to just 10% in 1970) and 41% of Associates

.

However increased participation rates have not, as would be expected, resulted in gender equality at senior levels. Figures continue to indicate alongside increased entry of women into key areas of the professional services, has come vertical stratification and horizontal 1 Bolton, S. & Muzio, D. (2008) The paradoxical process of feminization in the professions: the case of established, aspiring and semi-professions. Work, Employment and Society, 22(2):281-299.

2 McDougall, D. (11 September 2001) ‘Women Now Joining the Legal Profession in Record Numbers’, The Scotsman, The Scotsman Publications Ltd.

3 Op cit.

4 Glater, J. D. (26 March 2001) ‘Women are Closer to being Majority of Law Students’, The New York Times, The New York Times Company.

5 Eckberg, J. (February 26, 2001) ‘Female Lawyers Make their Case; Percentages changing – except at the

uppermost levels’, The Cincinnati Enquirer.

segmentation

. We thus see at the partner level, that only 14-17% of women make partner in the ‘Big 4’ accounting firms

and in law firms in the UK, 21% of women are partners, compared with 49% of men

.

In seeking to assess the factors contributing to this frequently observed and stubbornly persistent picture, the conceptualization of the field presented by Pinnington and Sandberg

is instructive. In their view, it may be useful to consider the literature on women lawyers and diversity in respect of three key explanations for the disproportionately high representation of men at equity partner. These are: micro and macro processes of social reproduction, organizational restructuring in the professions and gender discrimination in society and it is to a consideration of each of these explanations and how they combine to produce the inequity observed that attention now turns.

Micro and Macro Processes of Social Reproduction

Law firms are complex organisational structures, reflecting and reproducing historic conceptualisations of effective work practices and effective workers. Embedded within these culturally situated models are discriminatory factors; those which determine who is and who is not ‘one of us’. Sommerlad

indicates stratification theory is a useful concept as it enables a focus on the structural barriers that result in observable labour market distortions which

6 Hagan, J. & Kay, F. (1995) Gender in Practice: A study of Lawyers’ Lives. Oxford: Oxford University Press.

Sommerlad, H. (2002) Women solicitors in a fractured profession: intersections of gender and professionalism in England and Wales. International Journal of the Legal Profession, 9(3): 213-234. Stake, J. E., Dau-Schmidt, K.

G. and Mukhopadhaya, K. (2007) Income and Career Satisfaction in the Legal Profession: Survey Data from Indiana Law School Graduates. Journal of Empirical Legal Studies, 4(4): 939-981.

7 Spence, A. (2012) Big Four firm juggles the numbers to address lack of diversity. The Times, 2 October.

8 Law Society (2010) Trends in the Solicitors’ profession: Annual statistical report 2009. London: The Law Society of England and Wales.

9 Pinnington, A. H. and Sandberg, J. (2013) Lawyers’ professional careers: Increasing women’s inclusion in the partnership of law firms. Gender, Work and Organization, vol. 20(6):616-631.

10 Sommerlad, H. (2012) Minorities, Merit and Misrecognition in the Globalized Profession. Fordham Law

Review, vol. 80(6), pp. 2481-2512.

serve to position women and others deemed as ‘outsiders’ at a level in the firm characterised by inferior rewards and lower social status. These processes occur in spite of any action taken or choice made on the part of ‘outsiders’ with the consequence that gender and race stratification become embedded in work organizations and deemed inevitable

. From this perspective it becomes apparent that organisational structures and processes are recognised as operating to perpetuate indirect discrimination favouring the dominant organisational group, rather than applying in a fair and neutral manner in respect of all organisational members. As Sommerlad indicates, these processes have been surfaced by key commentators. Joan Acker, for example, draws attention to the notion of ‘gendered’ organizations

. Dickens, Itzin and Newman point to the pervasiveness of these processes arguing they are the outcome of subtle practices, processes and discourses representing in Kanter’s terms a ‘shadow structure’

capable of circumventing the intentions of well-considered equal opportunity initiatives

.

Ely and Meyerson

explore structural gender discrimination, querying why it is

that women remain relatively powerless at work. They suggest it is because organizations fail to question and alter their dominant ideal of what constitutes appropriate and effective ways to define and accomplish work, recognize and reward competence, understand and interpret behaviour. Workplace social practices thus tend to favour a dominant group – namely white heterosexual men without question and often in subtle and insidious ways. These workplace social practices include formal policies and procedures, such as managerial directives, job

11 Tilly, C. Durable Inequality, 1998.

12 Joan Acker, Hierarchies, Jobs, Bodies: A Theory of Gendered Organizations, 4 Gender & Society, 139 (1990) 13 Linda Dickens What HRM means for Gender Equality, 8 Human Resource Management Journal 23 (1998).

See also, Catherine Itzin and Janet Newman Introduction to Gender Culture and Organizational Change: Putting Theory into Practice 11 (Catherine Itzin and Janet Newman eds. 1995).

14 Ely, R. J. and Meyerson, D. E. Theories of Gender in Organizations: A New Approach to Organizational

Analysis and Change. Research in Organizational Behavior, vol. 22, pp. 103-151 (2000).

descriptions and performance appraisal systems. They also encompass informal practices, norms and patterns of how work should be done, the nature of relationships required to do it,

the distribution of rewards and opportunities, the way in which information is promulgated about how to advance in the organization, and crucially, the organization’s tacit criteria for competence, commitment and “fit”. Many of these practices implicitly or explicitly bestow a higher value on the prototypical male, masculine identity or masculine experience Bailyn

. Job descriptions for positions of authority that require masculine-gendered traits, such as

“gravitas”, independence and competitiveness, without due consideration to other traits that may be equally if not more relevant to the job requirements, are one example of a formal procedure in organisations that is oppressively gendered. An example of an oppressively gendered informal practice is requiring unrestricted availability to work as evidence of one’s commitment to the organisation, which can disadvantage women. Embedded within these social practices which recognise and reward committed, hard-working employees seeking proactively to advance their own and the company’s goals, is a gender bias that reflects and maintains women’s relative disadvantage.

Through this analysis, the disproportionately high numbers of women choosing to specialise in, for example, taxation law can be explained partly by the interaction between organizational structures and processes, underlying assumptions about sex-differentiation in parenting roles and resulting expectations that the ‘ideal worker’, able to work very long hours, is unlikely to be female. As such, those areas of legal practice, such as mergers and acquisitions, where hours are unpredictable and client demands are high are likely to be deemed unsuitable for women and areas such as tax law, where workflows are more

15 Bailyn, L. Breaking the Mold: Women, Men and Time in the New Corporate World. The Free Press, New

York, NY (1993).

predictable and hours more under individual lawyers control, become the domain of women and those from other non-normative groups. In this way, the dominance of the ‘ideal’

unencumbered worker remains intact, and those from non-normative groups, find themselves segmented into practice areas with lesser reward and lower status

. There are a number of practices which are mobilised within the firm that position women firmly in lower level strata, key among these are access to mentors and influential business networks and long hours work cultures.

Access to Mentors and Influential Business Networks

As a consequence of the segmentation processes outlined above, those from non-normative groups find themselves unable to gain access to key organisational resources necessary to advance in the global law firm. Key among these is access to well-positioned and influential mentors. Thus those from non-normative groups find themselves excluded from situations and activities within which informal mentoring relationships can develop; relationships their white, male, middle class colleagues are likely have access to and in career advancement processes, benefit from

Mentors provide their mentees with essential resources needed to progress in the global law firm. As Wald

indicates they provide insight into technical issues, subject matter expertise, can advocate on behalf of their mentee, provide valuable insider knowledge of the firms inner working and political structures and as key promotion points are reached, they can speak on behalf of their mentee and vouch for their suitability for advancement

. The altering of sector

16 Such assumptions generate a circular process of gender categorization, which in turn sustains ‘status value’

and ‘gender value beliefs’. Cecilia I. Ridgeway, Interaction and the Conservation of Gender Inequality:

Considering Employment, 62, AM. SOC. REV. 218, 221-223 (1997).

17 See Gwyned Simpson. The Plexiglass Ceiling: The Careers of Black Women Laywers. 45 Career Dev. Q. 173, 184-85 (1996).

18 Eli Wald. Glass Ceilings and Dead Ends: Professional Ideologies, Gender Stereotypes and the Future of Women Lawyers at Large Law Firms. Fordham Law Review, 78, 2245 2009-10. Pp. 2245-2288.

19 See Paula A. Patton, Women Lawyers, Their Status, Influence and Retention in the legal Profession, 11 WM.

& Mary J. Women & L. 173, 173 (2005).

realities in the 1990s/2000s, where intra-firm competition for talented associates and partners has become increasingly fevered, where the notion that ‘clients belong to the firm’ has shifted to one in which clients belong to rainmaking partners, makes mentorship and business networks even more critical to the development of ‘partner’ skills and conversely makes the absence of mentor support and little or no access to business networks an all but insuperable hurdle for women lawyers. As we learn from research in the fields of mentoring and social networks, an effective mentoring relationship is dependent on three main factors: perceived similarity, perceived competence and personal comfort

. This is endorsed by Rhodes who points out

women and minorities do not fare well on any of the three dimensions and are thus at a disadvantage in comparison to their white, male, middle class counterparts.

Long Work Hours

For Wald

another key contributor to women’s limited progression prospects in law firms are seemingly immutable working conditions. Large law firms are widely acknowledged as requiring excessive and inflexible work hours from their members and are unlikely to reward those who seek reduced or flexible schedules. Such practices are frequently attributed to demanding clients, who given the option; come to expect instant responsiveness and total availability

.

However, as Rhodes

indicates, inflexible and extended hours work schedules are not inevitable, rather they are the outcome of choices made in respect of firm-wide business

20 Belle Rose Ragins, Antecedents of Diversified Mentoring Relationships, 51 J. Vocational Behav. 90, 97 (1997).

21 Deborah L. Rhode. From Platitudes to Priorities: Diversity and Gender Equity in Law Firms. The Georgetown Journal of Legal Ethics, 24:1041, pp. 1041-1077 (2011).

22 See supra note 16

23 ABA comm’n on Women in the Profession, The Unfinished Agenda: Women and the Legal Profession 14 (2001). See also, Eli Wald, Loyalty in Limbo: The Peculiar Case of Attorneys’ Loyalty to Clients, 40 St. Mary’s L. J.

909, (2009).

24 Deborah L. Rhode. Lecture: Balanced Lives for Lawyers. 70 Fordham Law Review. 2207 (2001-2002).

models and the prioritisation of high utilisation and profitability, the raising of salary expectations and the continuation of implicit assumptions in respect of availability based upon the unencumbered man. Time thus becomes imbued not just with economic requirements, but also gains symbolic currency; a willingness to prioritise work over family life by submitting to demanding and extended hours work schedules becomes a proxy for qualities which are far more slippery and harder to quantify, such as commitment, ambition and reliability under pressure

.

Organizational Restructuring in the Professions:

There have been radical shifts in the way in which legal work is done and the employment patterns of contemporary lawyers. David Wilkins

observes that the practice of lawyers spending all or even the majority of their careers within a single firm are all but over and the more likely career model will be one of the ‘boundaryless career’ in which individuals move frequently between employers and gain power, status and financial reward as a consequence of doing so

. For law firms, boundaryless careers pose a challenge as rather than relying on a system of extended associateship (usually lasting between 8-10 years) before partnership is achieved, and gaining value from the employee after approximately 3-4 years; career paths need to be shortened and value extracted at an earlier stage. From an employee perspective, there is the need to develop experience earlier in careers as there is the likelihood that the employee will need to convince new employers of their value and the transferability of their knowledge sooner rather than later.

25 Cynthia Fuchs Epstein & Carol Seron, The Symbolic Meanings of Professional Time, in Legal Professions:

Work, Structures and Organization 79-94 (Jerry Van Hoy ed. 2001); Renee M. Landers et al., Rat Race Redux:

Adverse Selection in the Determination of Work Hours in Law Firms, 86 Am. Econ. Rev 329, (1996).

26 David B. Wilkins. Why Global Law Firms Should Care about Diversity: Five Lessons from the American Experience. European Journal of Law Reform, vol. 2(4), pp. 415-438 (2000).

27 Michael B. Arthur and Denise M. Rousseau (eds). The Boundaryless Career: A New Employment Principle for

the New Organizational Era. Oxford University Press, New York (1996).

There is evidence that firms are responding with alternative career models, moving away from the traditional up-or-out tournament, to one based on what Galanter and Henderson

have termed the elastic tournament whereby as opportunities for promotion to partner become more limited, career paths are lengthened and up-or-out is either abandoned or significantly limited; enabling the large number of associates required to serve clients needs to remain within the firm without attaining partnership positions. In this environment, opportunities for advancement become rarer and access to critical career enhancing levers such as key assignments, mentors, sponsors and business networks become hotly contested and keenly sought. The likelihood of women receiving career enhancing opportunities or being provided access to these key levers becomes yet more problematic as assumptions are made about their commitment and reliability, particularly if they carry disproportionate responsibility for matters at home.

That these changes have resulted in a more competitive work environment for anyone entering the legal profession is immutable, that they disproportionately impact women and other non-normative lawyers is also not in doubt. However, it then becomes worth asking the question as to whether this situation was inevitable and thus unavoidable, or whether it is the outcome of choices made in the knowledge that some groups would benefit and others would not. Wald’s

analysis is particularly instructive here. In noting that the changes made to practice development are not inevitable, he explains how extending already lengthy working hours, maintaining high salaries whilst simultaneously firing or delaying promotion of existing associates and choosing not to invest in new technology such that flexible and remote working could be accommodated are all decisions which do not necessarily make

28 M. Galanter and W. Henderson. The Elastic Tournament: A Second Transformation of the Big Law Firm.

Stanford Law Review, 60, 1867-1929.

29 See supra note 16.

economic sense, but do serve the purpose of firmly cementing women and other non- normative lawyers into the position of ‘other’ within the firm.

Through the invocation of a ‘hypercompetitive’ work culture, lawyers retain their elite status, they are deemed as ‘near-heroic’ servants, willing to pursue their clients’ interests on a 24/7 basis. The key point being that alterations to practice realities offered law firms the opportunity to redesign work structures and schedules to suit the needs not just of traditional groups within their ranks who have been successful, i.e. the ideal of the unencumbered white, middle class, man, but offered the opportunity for newer members of the firm with their own particular career needs and trajectories to also forge successful and rewarding careers. That large law firms have chosen, almost without exception, to ignore these possibilities in favour of business models based upon a more extreme version of the traditional workplace practices, indicates the extent to which a single model of success is embedded within law firms and how little appetite there is to see the model change even when the opportunity is presented.

Gender discrimination in Society

Neo-classical labour market theory presumes that the allocation of jobs and resources in a free labour market economy is predicated upon supply and demand. The assumption is that discrimination will not occur as it is irrational and has no place in the functioning of an objective and efficient market system as it builds in additional costs, limits access to talent and is thus uncompetitive. Thus, where discrimination does occur, it is the market that will eradicate it as competitive pressures of profit maximisation will always trump irrationally based decision-making – of which discrimination is an example

. However, persistence of discriminatory practice in the labour market has led neo-classical economists to seek an

30 Arrow, Cited in Reich, M., Gordon, D. M and Edwards. R. C. Dual Labour Markets: A theory of Labour Market

Segmentation. The Journal of Human Resources, vol. 17(3), pp. 359-365 (1982).

alternative explanation, which led to the development of human capital theory

. Through this perspective we find that individuals’ position in the labour market is the result of the investment they make in developing their educational qualifications, skills and experience such that they are attractive to employers. Thus if women ‘choose’ to invest less in their education, training and experience, it is because they have made a calculation that they are likely to spend more time in the domestic than the public sphere and thus the investment is likely to yield little return. The theory has proven highly attractive and as such has gained wide relevance in explaining differential achievement rates of particular groups in society

. However, the approach does suffer from a number of drawbacks, not least of which is that it does not take into account socio-economic factors which may limit individuals’ ability to invest in his/her human capital

. We thus see that neo-classical approaches tend to exonerate employers from labour market inequalities, with a focus instead on decisions made by individual workers to explain their labour market position. So, if discrimination exists in relation to certain social groups and their position in the labour market, it is a natural outcome of labour supply-side factors rather than any dysfunction in the labour market. As Beechey

notes, women’s lower position in the labour market is attributed to their societally constructed, stereotypical characteristics, such as their temperament, nature or capabilities rather than the construction of social structures and the underlying mechanisms that maintain them.

31 Schultz, T. W. Investments in Human Capital. American Economic Review, vol. 51(1), pp. 1-17 (1961).

32 Wood, G., Wilkinson, A. and Harcourt, M. Age Discrimination and Working Life: Perspectives and

Contestations – A Review of the Contemporary Literature. International Journal of Management Reviews, vol.

10(4), pp. 425-442 (2008).

33 Collinson, D., Knights, D. and Collinson, M. Managing to Discriminate. London, Routledge (1990).

34 Beechey, V. Women’s Employment in Britain in Beechey, V. and Whitegg, E. (eds) Women in Britain Today.

Milton Keynes: Open University Press (1986).

As McRae posits, women face many constraints as they choose how they will balance market work and family work and what priority they will give to one over the other at particular times. In terms of what is the basis upon which decision are made, McRae

indicates that they typically fall into two categories: normative and structural. In the former come a consideration of women’s self-identity, gender relations in the family and the attitudes of husband/partners. Into the latter come issues such as the availability of appropriate jobs and the cost and availability of childcare of a suitable quality. In a later paper, McRae

develops this theme indicating women’s career choices are in no way “random” or accidental. It is evident that women differ markedly in their attitudes to being mothers and mothering, and this difference is evidentially linked to their earning capacity.

Other explanations exist for the presence of labour market discrimination including Marxist and Institutionalist perspectives; with labour market theories developed to support their key contentions, e.g. Dual Labour Market Theory proposed by Doeringer and Piore

. However, it is evident that these approaches have been eschewed in favour of neo-classical explanations and within legal firms and the professional services generally, there is clear evidence of a reliance on gendered assumptions of what ‘women’ are like and what ‘men’ are like in the workplace and a reliance on neo-liberal discourses of meritocracy and human capital development to explain success or failure within the profession.

The Impact of Combined Forces

35 McRae, S. Returning to Work after Childbirth: Opportunities and Inequalities. European Sociological Review.

Vol. 9, pp. 125-138 (1993).

36 McRae, S. Constraints and Choices in Mothers Employment Careers. British Journal of Sociology. Vol 53(3), pp. 317-338 (2003).

37 Doeringer, P. and Piore, M. Internal Labour Markets and Manpower Analysis. Lexington, MA: DC Heath and

co. (1971)

As Wald

has cogently argued, it is the combination of these factors that proves ultimately

‘devastating’ for women as they seek to forge their careers in the globalised law firm.

Increased reliance on long hours as a signal of commitment and loyalty to the firm, serves to confirm the stereotype of women as under-committed and disloyal when they seek to combine their work and home roles. Anyone seeking to reduce their schedule or inject some flexibility into their working lives are immediately viewed as individuals who do not ‘get’

how competitive the market is, how important it is to the firm that everyone gives their 100%

time and attention to firm matters and that only if everyone does this, will the firm

‘survive’

. It could be argued, Wald continues, that in some (though misleading) sense the ideology is gender neutral, in that as long as 24/7 commitment is given, the rewards will accrue to anyone willing to give it – whether they be male or female. However, this is not the case. The nature of gender stereotyping is that there is an assumption of gender roles and whether women want to be mothers or not is irrelevant, this wish is inferred on them

and decisions and actions taken based on a stereotypical assumption rather than actual, observed behaviour. The presumption is thus that motherhood and the ability to commit 24/7 to the firm are mutually exclusive and could never work, even though technology is perfectly capable of facilitating the work of a lawyer, whether at work or at home

.

We thus see that the prospects for female advancement within the profession are becoming increasingly bleak through a combination of societal, structural and normative factors.

However, what we have not seen is a decline in the number of women attracted to careers in the law or a decline in law firms’ willingness to hire them. What has also been evident in

38 See supra note 16.

39 Joan C. Williams, Beyond the Glass Ceiling: The Maternal Wall as a Barrier to Gender Equality, 26 T. Jefferson Law Review. 1 (2003). Joan C. Williams, Litigating the Glass Ceiling and the Maternal Wall: Using Stereotyping and Cognitive Bias Evidence to Prove Gender Discrimination, 7 Emp. Rts. & Emp. Pol’y J. 287, 287-93 (2003).

40 Joan C. Williams & Elizabeth Westfall, Deconstructing the Maternal Wall: Strategies for Vindicating the Civil Rights of ‘Carers’ in the Workplace, 13 Duke J. Gender L. & Pol’y, 31, 31 (2006).

41 See supra note 40.

recent years is an increasing engagement on the part of law firms, with discourses of diversity management alongside the introduction of diversity management practices aimed at continuing the trend of attracting the ‘brightest’ and the best into their ranks and maintaining claims to elite status. What approach to diversity management law firms have taken, what practices have they turned to and how suited these are to addressing the issues identified above is discussed in the following sections.

The Approach to Diversity Management in Large Law Firms – A UK Perspective

Joanne Braithwaite

has noted that in the UK, business case arguments have overwhelmingly been used to both support adoption of diversity management approaches within law firms and frame policy choices and objectives. The Law Society has promoted the approach, as evidenced in their Handbook, Charter and Protocol

. This has also been the case for Government, as evidenced by a 2008 speech given by the (then) Secretary of State for Justice who emphasised the diversity-related business advantages for large law firms as they seek to secure international work

.

Joanne Braithwaite

further observes that in general terms, business case arguments for diversity management are directed towards persuading organizations to voluntarily undertake diversity initiatives by linking workforce diversity to positive organizational factors which include an improvement in recruitment outcomes

, positive impact on employee

42 Joanne P. Braithwaite ‘Diversity Staff and the Dynamics of Diversity Policy-Making in Large Law Firms. Legal Ethics, 13(2) pp. 141-163 2010.

43 Law Society, Delivering Equality & Diversity: A Handbook for Solicitors 2004.

44 The Right Hon Jack Straw MP, Lord Chancellor and Secretary of State for Justice, ‘Launch of Law Society

“Markets, Justice and Legal Ethics” Campaign’, speech delivered 6 March 2008, Law Society.

45 Joanne P. Braithwaite, The Strategic Use of Demand-Side Diversity Pressure in the Solicitors’ Profession.

Journal of Law and Society, vol. 37(3) pp. 442-465 2010.

46 S. Ruthford and S. Ollerearnshaw, The Business of Diversity: How organisations in the public and private

sectors are integrating equality and diversity to enhance business performance. Schneider Ross, London, 2002.

performance

, reduction in the risk of discrimination based litigation

and reduced employee turnover leading to cost savings

. In their review of equality legislation, the UK government conclude good practice with respect to diversity management is synonymous with becoming an ‘employer of choice’ and enables organizations to improve their standing with both current and future employees and customers alike

.

Business case arguments have also been used to demonstrate key mechanisms by which relations with clients can be enhanced. Thus business case arguments have been deployed to assert a link between improved diversity and the enhanced ability of firms to serve new markets

and provide higher quality service to existing clients

. These key features have come to represent the dominant approach to managing equality, described by Webb as a

‘market-orientated’ conceptualisation of the way in which differences can be accommodated

.

The approach adopted in the legal sector, is not dissimilar to that found in the wider business community. In 2006, the CIPD

commissioned a survey to assess the extent to which employers have understood and taken action in respect of the business case for diversity. The effect of activity in relation to diversity was also examined as were the attitudes of those

47 Opportunity Now, Equality and Excellence: The Business Case (2001). See also Equal Opportunities Commission, Guidelines for Equal Opportunities Employers (2006) and Catalyst, The Bottom Line: Connecting Corporate Performance and Gender Diversity (2004).

48 See Linda Dickens, ‘Walking the Talk? Equality and Diversity in Employment’ in Managing Human Resources:

Personnel Management in Transition, Ed. Stephen Bach (2005).

49 See Catalyst, op. cit., no. 48; Opportunity Now, op. cit. no. 48; R. Kandola and J. Fullerton, Diversity in Action: Managing the Mosaic, 2

Edition, 1998.

50 DLR proposals, para. 6.1.

51D. Wilkins Valuing Diversity: Some cautionary lessons from the American experience’ in Managing the Modern Law Firm, L. Empson (Ed.) 2007; D. Wilkins, ‘Do Clients have Ethical Obligations to Lawyers? Some Lessons from the Diversity Wars. Georgetown Journal of Legal Ethics, 855, fn. 9. 11 1997-8.

52 Rutherford and Ollerearnshaw, op. cit. 46.

53 J Webb, The Politics of Equal Opportunity, Gender, Work and Organization, 4, pp. 163, 1997.

54 CIPD (2006a) ‘Diversity in Business: How much progress have Employers Made? First Findings, Tatli, A.,

Ozbilgin, M., Worman, D. & Price, E.

tasked with implementing change within organizations. The survey was conducted among UK organizations and 285 organizations took part. Findings revealed that in respect of key drivers for diversity in organizations, the main factors were legal pressures, cited by 68% of respondents; recruitment and retention of talent, cited by 64% of respondents, corporate social responsibility, cited by 62% of respondents; a wish to be seen as an ‘employer of choice’, cited by 62% of respondents and because it makes business sense, cited by 60% of respondents. 60% of respondents take action on diversity because they believe it to be morally right, 48% do so to improve business performance and 43% do so to improve customer relations. 43% of respondents believe that taking action on diversity will enable them to improve their creativity and innovation and 40% that it will assist them in reaching diverse markets.

Implementing Diversity Management

Research evidence suggests that building a guiding team is the most effective way in which to ensure that diversity management achieves key outcomes. In their study of the effectiveness and efficacy of diversity programmes across a number of organisations Kalev et al.

concluded “Broadly speaking, our findings suggest that although inequality in attainment at work may be rooted in managerial bias and the social isolation of women and minorities, the best hope for remedying it may lie in practices that assign organizational responsibility for change... affirmative action plans and diversity staff both centralise authority over and accountability for workforce composition, diversity committees locate authority and accountability in an interdepartmental task force and may work by causing people from different parts of the organisation to take responsibility for pursuing the goal of integration”.

55 Kalev, A. Dobbin, F. & Kelly, E. (2006) ‘Best Practices or Best Guesses? Assessing the Efficacy of

Corporate Affirmative Action and Diversity Policies’, American Sociological Review, 71(3), 589-616.

Conducting her research in 2008, Joanne Braithwaite

found that only 3 of the large law firms taking part in her study had appointed a member of staff with the specific title of

‘Diversity Manager’. For others in the sample, the task had been assigned to members of the HR department as part in addition other activities they performed. Diversity staff tended not to be legally trained, but all had an HR background. They were recruited either internally, from broader HR roles or hired externally from other professional services firms in the City where they had previously had experience in diversity management. However, those hired internally had no previous diversity experience as the activity was a recent one within the firm. Those hired externally provided their firms with a broader perspective and proven experience, with most external hires commenting in the study that law firms were some way behind their fellow professional service firms.

In addition to the creation of diversity roles within law firms, Braithwaite’s study indicates a promotion of diversity activity through publication on firms’ websites of both their commitment to diversity management and also evidence of their engagement with the diversity community via membership of and affiliations with, diversity-related organisations, e.g. Opportunity Now, Stonewall, etc. Diversity Committees were also evident in over half the firms in Braithwaite’s study

. These consisted of either partner-only sub-committees of the main board (which drew on information and data generated by working groups) or they were more broadly constituted, with a mixture of partners, associates, diversity staff and at times, representatives of the non-lawyer workforce. In terms of their remit, this differed

56

57 See supra note 45.

across firms, but they broadly had responsibility for working with the firms main board, producing diversity statements, collecting diversity-related data and liaising with diversity specialists (where present) to consult internally on prioritisation of key issues.

Diversity Management Practices in the Large Law Firm

In assessing the approach large law firms have adopted in respect of their diversity management practices, it is evident that two main types of intervention dominate. These can be termed ‘demand’ side initiatives and ‘supply’ side initiatives and each is discussed in turn.

Demand Side Initiatives

In respect of demand side initiatives, the key policy lever utilised within the legal sector has been the mobilisation of client pressure as means of eliciting change. The driver of the change is a Law Society initiative, which may typify what Wilkins

has termed ‘demand- side’ diversity pressure. However, even prior to Law Society intervention, there is evidence that private sector law firm clients have voluntarily opted to engage with the strategic use of demand-side diversity pressure. As Braithwaite notes

Mark Harding, UK General Counsel of Barclays, was one of the first to attract media attention when he announced that part of the selection process for law firms used by the Bank, would be a request for ‘staff diversity statistics’

. This announcement gained further significance because at the time it was made, he held the roles of Chair of the General Counsel 100 Group and the committee of general counsel of the FTSE 100 companies.

58 See supra note 51.

59 See supra note 45.

60 D. Middleton, ‘Barclays ups the ante on panel firm diveristy’ The Lawyer, 13 February 2006.

In 2009, the Law Society

launched an initiative which may be viewed as an attempt to firstly endorse demand-side diversity pressures and secondly to formalize them. The protocol is an entirely voluntary scheme, with the broadly stated aim of facilitating increased

‘diversity and inclusion’ in the solicitors profession. No further detail is provided in respect of how this is to be achieved. The instrument contains two main parts. A Charter which invites ‘providers of legal services’ to sign up to a statement

, comprising a list of intentions (for example ‘to strive to achieve best practice in our recruitment, retention and career progression practices as employers’). The second part consists of a protocol, to which

‘purchasers of legal services’ (i.e. clients) are invited to become ‘Protocol Partners’. This requires from them a ‘simple commitment ….to collecting and considering standard diversity information from any law firms tendering legal work using a model questionnaire’

.

Those signing up to the Protocol on Legal Procurement commit to considering the data in respect of the effectiveness of tendering firms equality policies collected through the protocol questionnaire in their ultimate decision on which firms to retain

’.

Louise Ashley

, in her study, also found that UK City law firms were subject to varying forms of diversity-related pressure from potential clients. This usually occurred during the

‘pitching’ process, in which law firms bid for work. Initially such pressure came from public sector clients arising from their statutory duties. However, their requests were largely viewed as perfunctory and deemed by diversity staff within the firms to have little impact on outcomes on internal processes. However, demands became more pressing as some clients required follow-up information once they had retained the firm and then Ashley found some requests impacted directly on law firms’ diversity practices; though when this occurred it

61 Law Society, Diversity and Inclusion Charter, 2009.

62 Law Society, Diversity and Inclusion Charter: Protocol on the Procurement of Legal Services 2009.

63Protocol, op Cit. 62.

64 Protocol, op cit. 62.

65 Louise Ashley Making a Difference? The Use (and abuse) of Diversity Management at the UK’s elite law

firms, Work, Employment and Society, 24(4) 711-727.

tended to be on an ad hoc basis. Thus, the example is given of a number of clients requesting joint activities be organised between the firm’s women’s network and that of the clients’.

The problem for the firm in the study, was at the time of asking, they didn’t have a women’s network and so as the participant in the study commented ‘we had better get one’.

Supply Side Initiatives

In respect of supply-side initiatives undertaken within large law firms, the main emphasis has been on activities which are most visible and likely to be widely recognised. In most instances, Braithwaite

notes, this has meant a focus on the retention of women lawyers. For example, Linklaters states on its diversity and inclusion webpage, ‘a particular challenge is stemming the loss of potential female partnership candidates too early in their careers’

(71).

A key policy initiative to address this issue has been to establish networks for women employees within firms. The number of these has increased over the past 10 years, though they are not evident in all firms.

An additional response has been the provision of coaching and mentoring for those who are parents, or who are returning to the workplace after a career break. A few firms offered further support in the form of childcare vouchers and emergency childcare cover. A key lever accessed by firms is the utilisation of part-time and flexible working options for fee payers.

The introduction of formal policies supported these approaches and with key provisions providing options for working from home and job sharing. However, supplementary interviews in Braithwaite’s

study provided evidence that part-time or flexi-work schedules

66 See supra note 45.

67

68 See supra note 45.

remain challenging on a day to day basis, and a clear sense that uptake of these options will negatively impact career momentum in a large law firm context

.

Research would indicate that these views are not without basis. Cynthia Fuchs Epstein’s

study of part-time lawyers revealed only 1% had become partners (38). The study showed that reduced schedules led to assumptions about lack of commitment, which in turn impacted performance evaluations and thus promotion outcomes. Further disadvantages accruing those undertaking part-time schedules included, reduced opportunities for mentoring relationships and access to challenging assignments; prerequisites for advancement

(39). Doubtless, reduced schedules work for some, who experience support and respect from colleagues, however, for others the experience is not as positive as they report feelings of frustration, isolation and marginalization

(40). ‘Schedule creep’ is also a common pattern issue faced by those working on a reduced-hours basis; their time is not respected; ‘unexpected emergencies’ gradually become expected tasks, and what was supposed to be a reduced workload becomes full-time and only the pay remains part-time

(41).

TO HERE TAKEN FROM REF 6 – I THINK. DO REFERENCES AND FINISH OFF SECTION.

Nevertheless, there was evidence that firms were keen to display their diversity credentials by publicising the rate of uptake of part-time and/or flexible working in the diversity information they provide in their diversity statistics. Where these figures are given, it is evident that those working on part-time or flexible schedules are extremely rare across the ranks of lawyers within large law firms.

69 S. Sommerlad and P. Sanderson, Professionalism, Discrimination, Difference and Choice in Women’s Experience in Law Jobs’ in P. Thomas (ed.) Discriminating Lawyers, Cavendish, 2000.

70

71

72

73

Ref 12: The problem is compounded by the inadequacy of structural responses. A wide gap persists between formal polices and actual practices concerning work-family conflicts.

Although over 90% of American law firms report policies permitting part-time work, only 4% of lawyers actually use them (101). Many lawyers believe, with good reason that ‘no time…is the right time to get pregnant’ and that any reduction in hours or availability would jeopardize their careers (102). The evidence available does not find substantial resistance among clients to reduced schedules. They care about responsiveness, and part-time lawyers generally appear able to provide it (113). In one recent survey of part-time partners, most reported that they did not even inform clients of their status and that their schedules were adapted to fit client needs (114). Accounting which is also a service profession and anything but indifferent to the bottom line, has developed a business model that more than offsets the costs of work/family accommodation by increasing retention (115). Considerable evidence suggests that law practice could do the same, and reap the benefits in higher morale, lower recruitment and training expenses and less disruption in client relationships (116).

Ref 7: The classic justifications for stigma are that ‘law can’t be practiced part-time’ and that

‘part-timers cost the firm money’. Both contentions are untrue. Most lawyers work on a

variety of matters at once, giving part-time attention to each. The only question is how many

matters will they work on at once. Clearly then, one workable approach to part-time is to

reduce total hours worked by reducing the number of matters worked on. In practice, though,

this approach is rarely taken. Another important point stressed by PAR is that a part-time

schedule does not necessarily mean leaving at a set time each day, or even working a set

number of days each week (29). This type of limited schedule is possible far more frequently

than is commonly assumed. Every time someone asserted that a given area – Mergers and

acquisitions for example, or litigation – was not suitable for part-time work, we soon found someone successfully working a part-time schedule in precisely that practice area (30).

Diversity staff also facilitated these negotiations by leveraging those external pressures discussed above. A common tactic was to make the most of client requests regarding the firm’s diversity statistics or diversity policies. However, diversity staff also used other sorts of external pressures directly and indirectly in their task of ‘influencing and persuading’. In particular, the research found that diversity staff in most of the firms in the sample devoted a surprising amount of time to external awards and ranking exercises and that they had prepared submissions for, or were working towards entering, exercises including Stonewall’s Workplace Equality Index, (78) the Black Solicitors Network’s Diversity League Table and accolades such as the Law Society’s award for excellence in equality and diversity and the The Lawyer Magazine’s award for ‘most effective diversity programme’.

English’s analysis of the ‘simply tremendous growth of cultural prizes’ in the arts sector is helpful here (81). Drawing on Bourdieu, he argues that the prize may be understood as an

‘instrument of cultural exchange’ and the award of prizes as a ‘full contact marketplace’

where different parties – judges, sponsors, entrants, winners, losers, organisers and even those attending awards ceremonies – successfully create value for one another (82).

Diversity staff typically made the case for each new policy in turn and when doing so they

faced a series of challenges which came back to the fact that such activities are voluntary for

law firms and the status quo is highly resilient. In order to ‘influence and persuade’ in these

circumstances, diversity staff were found to adopt a series of strategies. They deployed

business case logic (though this also makes them vulnerable to difficult questions), leveraged

external pressures and used prizes, ranking exercises and peer pressure to make their case.

They also checked their rhetoric and their agendas to take account of concerns regarding merit and the status quo.

At the time this research took place all five firms had incorporated elements of a diversity approach in the recruitment and other practices. Most relevant here, three of the five case study firms had introduced training, one of which, Firm D, could be said to represent ‘best practice’. Here, diversity training was mandatory for all staff, was face to face and focused explicitly on helping staff to understand and address their conscious and unconscious bias.

This training had been well received by employees. Diversity training at Firm A was not compulsory and was largely conducted through e-learning programmes. Firm B provided training for all staff, though this was focused on the application of equal opportunities legislation, particularly in relation to avoiding discrimination claims.

Ref 13: Findings: elitism and exclusivity

The specific programmes described above play an important part in corporate rhetoric and

often comprise the flagship of a firm’s diversity agenda. Yet this research would suggest that

knowledge of these diversity strategies is largely confined to the HR department and as such

they have limited impact. This point can be demonstrated when considering that this study

included 37 people outside HR who had direct responsibility for recruitment decisions. Most

were unaware whether or not their firm had a diversity policy in place and almost none were

able to point to a specific supporting strategy. This sample group included the partner with

direct overall responsibility for graduate recruitment at Firm B who professed almost total

ignorance of the firm’s diversity policy and strategy.

Applicability to Issues faced in the large law firms

Section 5: discussion: evident that the approach adopted does not address the issues identified and as such leads us to the outcomes we see. Systematically assess how this happens. Then discuss why this might be the case. Conclude with a call to firms to take context more specifically into account; to tailor diversity strategies/activities to this and finally begin to make progress in what seems to be an intractable area, but which defies understanding as to what is so difficult.

POINTS TO MAKE: HOQUE AND NOON TALK ABOUT EMPTY SHELL AND

GIVE DICKENS/JEWSON ACCOUNT OF WHY ORGANISATIONS MAY ADOPT

DM. SEEMS HERE WE HAVE A CONTRADICTION. DM HAS LARGELY BEEN

EXTERNALL EXPOSED AS PER THEIR TYPOLOGY AND THUS THE POLICY IS

AN EMPTY SHELL. HOWEVER, THEY HAVE AN INTERNAL DRIVE ALSO IN

THAT THE INTERNAL ENVIRONMENT HAS CHANGED WHICH THEY ARGUE

MEANS IT WON’T BE AN EMPTY SHELL. WHAT WE SEE HERE IS THAT IT IS

STILL AN EMPTY SHELL FOR THE REASONS OUTLINED ABOVE. THERE IS

NO WILL TO CHANGE THE STATUS QUO OR TRANSFORM THE

ORGANISATION. THE OPPORTUNITY WAS THERE AND ALTERNATIVE

CHOICES WERE MADE. THUS, WE HAVE AN EXAMPLE OF WHERE EVEN

THOUGH THERE ARE INTERNAL AND EXTERNAL DRIVERS FOR CHANGE,

THE POLICIES ADOPTED ARE MERE EMPTY SHELLS. TYPIFIED BY THE

LACK OF UPTAKE OF PT WORK OPTIONS AND THE EVIDENCE THAT

WOMEN BELIEVE THAT THIS WILL NEGATIVELY IMPACT THEIR CAREER

CHANCES AND THEY ARE RIGHT TO BELIEVE THIS. GIVE OTHER

EXAMPLES IF POSSIBLE – SOME GOOD ONES FROM LOUISE ASHLEY’S PAPER - AND MAIN POINT IS THAT GIVEN THE PROBLEMS UNTIL THERE IS A GENUINE WILL WON’T SEE CHANGE. THUS FIRMS ARE EXPENDING A LOT OF TIME AND ENERGY BUT IT IS ON THE WRONG THINGS ARE THEYARE NOT ADDRESSING THE ACTUAL ISSUES THAT CONFRONT THEM.

WHETHER THIS IS BY ACCIDENT OR DESIGN CAN ONLY BE SPECULATED ON BUT THAT THIS IS THE CASE IS CLEAR FROM THE LITERATURE.

Bit from book implementing diversity chapter: However, the question remains as to the compatibility of these two approaches in creating a sense of urgency in respect of action with regard to diversity management. Are morality/social justice based arguments merely added to business based arguments to widen their appeal; implying a deeper commitment to the principles of morality reflected in the arguments is absent in the organization. If this is the case, then for some the very nature of the arguments has been undermined and obscured.

Sinclair (2006) and Noon (2007) both argue morality based arguments are ends in themselves and cannot be deployed when based on a contingent argument predicated upon potential organizational benefit. Noon (2007:781) contends an organizations commitment to diversity management should emanate from the fact that equal opportunity ‘is a human right based in moral legitimacy (social justice) rather than economic circumstances’. How committed an organization is to these principles is evidenced by their pursuance of diversity objectives without reference to potential benefit that may accrue to the organization; indeed it is evidenced by the extent to which the organization is willing to continue to work towards these ends even if doing so is economically disadvantageous. Within this formulation we see a fundamental incompatibility between business interests and social justice objectives.

Ref 13: For critics of diversity management, there are many problems with the developments

outlined above. A number of commentators have called diversity a ‘verbalist’ approach,

which is mistakenly preoccupied with changing attitudes at the expense of achieving more

fair outcomes. Diversity’s exponents claim that this approach is a means to depoliticise

related issues, to assist both managers and employees suffering from so-called equity

‘fatigue’. Others have shown that diversity merely reflects existing power relations between management and employees in an organisation (Zanoni and Janssens, 2004). Diversity’s notional individualism is said to result in a type of relativism in which, because we are all different, we are all the same in our difference. This relativism means that that the need to reduce discrimination against disadvantaged groups is diminished and the obstacles encountered by members of these groups are underestimated (Kirton and Greene, 2007). The business case has been called both economically contingent and highly variable according to the particular organisation and its strategy (Barmes and Ashtiany, 2003; Dickens, 1999). In some analyses it has been feared that the wholesale ousting of EO by diversity’s business case would deny the legitimacy of the moral agenda (Noon, 2007).

Transformative Potential

Ref 10: The final feature of the diversity approach that is consistently referenced in the literature is its potential to transform organisations by challenging the status quo. Aiming to change ‘organisational structures….to better accommodate all’ (50) is an attractive and optimistic sounding goal, which campaigners can neatly link with the business case, discussed above. For example, in an article on the subject of diversity and the financial crisis, Opportunity Now promises that ‘the prize for employers who are willing to tackle and change the status quo could be huge’ (51).

This aspect of the diversity approach is also evident across the campaigns targeting the large

law firm sector. The foreword to the Government’s 2005 report, written by Bridget Prentice,

MP, staged tha the legal profession would not be ‘the high quality profession we want it to be

unless we increase the diversity of that profession’ (52).

In the context of the legal profession, scholars have long pointed to the need for radical change within law firms, including Webley and Duff who have argued that women lawyers may act as a ‘barometer’, or as ‘more accessible indicators of problems’ within the professional project (57). This suggests that while the ‘transformative potential’ of diversity may seem relatively uncontroversial in theory, it may not prove so when applied in a particular setting such as a law firm. As seen, it is one thing to argue that the diversity approach may transform an organisation by unlocking a variety of benefits; it is another to follow this logic through more fully and argue that the perspective of marginalised groups might help to shine a light on deep-seated problems with the status quo.

Ref 8: But as widespread as they are, the legal profession literature has overwhelmingly objected to the use of business case arguments.

Three main themes might be identified as running through this literature, the first and perhaps most compelling of which concerns the weakness of the central premise of the business case (that diversity is good for business and this is why organizations should take action).

McGlynn has pointed out the empirical failing of this premise, arguing that the promise of

increased profits could in fact be used to back up positons on both sides of the debate about

implementing equality policies (72). Dickens (writing outside the context of the legal

profession) has also argued that by focusing on economic outcomes, business case arguments

may in fact ‘thwart’ the adoption of equality measures (73). In other words, the problem with

relying on market-orientated arguments is that they fail to live up to their promise in practice

and thereby lose any capacity to trigger voluntary action.

The second theme concerns any changes which might result from business case reasoning.

The argument has been made that organizations may well find this rhetoric persuasive (when it suits them) but that any changes which do result will be limited and unstable in nature.

Malleson, for instance, has referred to the ‘inherently unstable nature of the profit margin as a driver of change’ (76) and as McGlynn puts it, considering the position of women in the solicitors profession, the business case ‘fails to take account and confront the complexity of the gendered nature of the reasons behind women’s marginalized status’ (77). This suggests that while there may be ‘quick wins’ in the solicitors profession on the basis of the business case, such changes will not focus on the right issues, will be vulnerable to contrary economic arguments and will, for those reasons, not result in any meaningful change.

A third theme in this literature draws attention to the moral shortcomings of citing profit rather than fairness as the driver of change. As Webley and Duff argue, there is a gulf between ‘those of us who believe that equality of opportunity is a social and moral right’ and those campaigners for whom diversity is ‘a means to short term profit maximisation’ (78).

In short, if the use of demand-side diversity pressures is understood as a development of the business case logic, this literature does not suggest grounds for optimism that it will have a transformative effect on the solicitors profession. Overall, he expresses doubts that the interests of, as he puts it, ‘US minotiries in law firms will ever really be a priority for clients compared to the primary objective of seeking out the lawyers who best understand their culture and serve their needs’ (80.

The concerns raised by Wilkins seem pertinent in the context of the UK too. Here, the

literature describes how sophisticated commercial clients are increasingly pressurizing law

firms, both during retainer negotiations and thereafter (82). However, to the extent that this

pressure is forcing innovations, they seem primarily to be concerned with how services are

delivered and with billing structures (83). Indeed, Susskind has recently considered whether such trends, catalysed by the new possibilities of information technology, may become so overwhelming that they lead to the ‘end of lawyers’, or more precisely, the end of current forms of legal practice (84). So this literature also suggests that when clients shop around for lawyers, it is primarily with the intention of promoting their own interests through innovations relating to IT, billing and outsourcing, not to promote ‘good causes’ like diversity.

KEEP USEFUL FOR ARGUMENT THAT DIVERSITY MANAGEMENT FROM A BUSINESS CASE PERSPECTIVE IS NOT GOING TO BE HELPFUL Any rule broad enough to cover the variety of contexts and conduct that might possibly arise will of necessity be general and ambiguous, and produce considerable uncertainty about the boundaries of lawful conduct. Sturm (2001) thus argues that any rule specific enough to guide behaviour will inadequately account for the variability, change and complexity characteristic of second generation problems and that externally imposed solutions will be unlikely to be effective as they cannot be sufficiently sensitive to context or integrated into the day-to-day practice that shapes their implementation.

Ref 10: Braithwaite, Legal Ethics Article

Rackely has criticised those (including the Department of Constitutional Affairs) who focus

on what she calls ‘an evening up of the numbers on the bench to ensure a kind of numerical

aestheticism’ (37). Defining diversity by reference to numbers therefore risks tokenism and

ultimately, leaving the status quo intact. Others have sought to reconcile the focus on specific groups with the diversity approach. In particular, it has been argued that the individualistic focus of the diversity approach needs to be qualified by reference to group identity, because it risks detracting from the realities of unfairness (39) and because of the broader ‘legislative context’ which is framed by reference to protected groups (40). Nonetheless, to the extent that law firms (and specifically diversity staff) do seek to be accountable on ‘diversity’

matters, this tension clearly has the potential to present a considerable challenge, blur policy objectives and may even thwart progress.

Ref 11: Hoque and Noon

On balance the ‘empty shell’ argument is more convincing. Smaller workplaces, private sector workplaces and workplaces without an HR or personnel specialist are identified as being more likely to have an ‘empty shell’ policy.

The argument, in short, is that many EO policies are ‘empty shells’: they contain nothing of substance or value to the victims of discrimination.

A survey of employers in Scotland (CRE, 2000) concluded that while over 90% of private sector employers had a written EO policy covering race, sex and disability, fewer than half were able to demonstrate that they had taken practical steps to put these policies into practice.

Whether an EO policy is likely to have substance depends largely on the reasons for its

introduction. Jewson et al. (1990, 1992, 1995) argue that organizations adopt formal EO

policies for four reasons, none of which are mutually exclusive. First, they can constitute a

type of ‘insurance policy’ against future potential problems, frequently taking the form of a

statement of legal minimum requirements to guide management behaviour. Second, they can

be adopted in order to demonstrate that the organization is a responsible employer because it

pursues the spirit of equality as well as the letter of the law. Third, they can be a direct response to a particular problem within the organization, identified either internally or as a result of external pressure – from community groups, the CRE or the media, for example.

Fourth, they can be adopted for the purpose of commercial advantage – to tap into a wider talent pool or to expand the customer/client base.

As such, the motives behind the adoption of EO policies can be broadly categorized as ‘good for business’ or ‘bad for business’ (Dickens, 1999, 2000). The former category suggests firms adopt policies because of perceived benefits, such as their competitive position in the labour market, better employee relations and a positive company image. The latter category suggests firms defensively accept policies to avoid penalties such as tribunal costs, adverse publicity or investigations by the EOC or the CRE. The leitmotif of the discussions by Jewson et al.

and Dickens is that where the aim is to enhance either the external or internal image of the organization, there is greater likelihood that the EO policy will constitute little more than an

‘empty shell’. On the other hand, where the aim is to address a particular concern, for example, a skills shortage or the profile of customer-facing staff, the policy is more likely to be backed up with substance.

Research examining the impact of EO policies on the equal treatment of ethnic minorities

demonstrated that ethnic minority men and women received equal treatment relative to their

white counterparts in workplaces with an EO policy, but not in workplaces without such a

policy (Noon and Hoque, 2001). Within the analysis, a strict criterion was used to determine

whether workplaces had an EO policy. This implies that policies of substance matter in terms

of ensuring equal treatment. It would also be reasonable to argue that EO policies and

practices are unlikely to secure equal treatment on their own unless employers also develop

an environment and culture that enables equality of opportunity to flourish.

Ref 13: Louise Ashley 2010 article

Refs for ‘ideal worker’ (Liff, 1999; Young, 1990) use above