Minority Issues

Differentiating Diversity Goals From Quotas In The Legal Profession

There is a big difference between a goal and quota.

By  
on

“This morning, I woke up / Feeling brand new, I jumped up / Feeling my highs and my lows / In my soul and my goals.” — Talib Kweli

Last week, I wrote about McKinsey & Company’s 2015 Diversity Matters Report. In my post, I wrote that to foster a successful diversity program, McKinsey recommends for an organization to: i) create a clear value proposition for having a diverse and inclusive culture; and ii) set a few clear targets (not quotas) that balance complexity with cohesiveness.

Several readers have asked me, what the difference is between goals and quotas? Is it possible for a law firm to share clear numerical targets that would not be considered quotas? In the public education arena, Carnegie Mellon University has stated:

Are affirmative action goals merely targets that the university should aim for, or are they really inflexible hiring quotas that must be met—even if it means hiring women or minorities over equally or better qualified others?

The Department of Labor’s Office of Federal Contract Compliance (OFCCP), which reviews and evaluates our affirmative action program, maintains that affirmative action goals established under its regulations are flexible targets, not rigid quotas. Failure to meet such goals will not result in sanctions as long as the employer can show it has made a ‘good-faith’ effort. Simultaneously, the OFCCP has advised that universities with formal affirmative action programs may find themselves on the receiving end of reverse discrimination lawsuits brought by, for instance, white male employees or applicants who believe they have been passed over in favor of women or minorities.

It is vital that we carefully scrutinize and document the reasons for every employment decision made at the university to ensure our human resource actions are based on merit and not personal bias or for some other subjective reason. We believe such safeguards can reduce liability, with both the OFCCP and disgruntled job seekers or employees.

Obviously employers regulated under the OFCCP are under a much different level of scrutiny and may have different goals than private law firms. This being said, should law firms have diversity goals? If so, how are diversity goals different than quotas?

Diversity City Careers’ Matt Lee writes, “In the world of diversity and inclusion, particularly when it comes to gender diversity, the debate over quotas vs. targets is a hot one…. Just to be clear, my definitions of targets and quotas are: Targets are aspirational goals that aren’t required to be achieved. Quotas, on the other hand, are mandated outcomes, that is they must be achieved.”

In Australia, Lee is an advocate for quotas. He states:

Sponsored

[I]f we want to really start making a difference and genuinely speeding up the pace of change, quotas have to be used. We’ve tried targets and the pace is still too slow. Along with efforts to educate, communicate, change culture and stereotypes, quotas and targets are a must. It’s around 100 years since legislation was passed giving women the right to vote (or suffrage) we can’t still be debating the merits of diversity in another 100 years.

While I don’t believe in rigid quotas, I am a big proponent for flexible targets. So how should a law firm go about setting a few clear targets that balance complexity and cohesiveness? In her article “How to Create Diversity Targets With Teeth,” Leith Mitchell outlines a host of factors that are critical in building a successful diversity program. Here are several of her key points:

  • to address any business pain point, a strategy is required along with targets to measure progress;
  • real change can’t happen without a commitment from the top, because that’s where people take their cues;
  • diversity targets do not work when they are not tied to a strategic vision, and when there is no governance or accountability for achieving them;
  • hiring qualified female candidates does not lower the bar, it helps organizations overcome unconscious bias;
  • before we throw out targets, let’s try operationalizing diversity first — constant, close attention for sustainable change to take place; and
  • diversity needs to be on the board and management’s agenda on a daily basis, driven by targets with accountability.

The article “Targets Not Quotas to Promote Women Leaders” states:

Targets and quotas have been two types of strategy commonly applied in bids to boost gender diversity. . . quotas draw strong criticism from those who believe they undermine the principle of merit. . .

As such, the case for mandated quotas is a weak one, given their cost, the negative cultural and psychological implications, and the ambiguous evidence of their benefits.

Voluntary targets on the other hand could be better designed and implemented to greatly improve their potential effectiveness. Targets are already heavily utilized and highly effective in other areas of managerial work. Assigned gender targets for which managers are held accountable and, where appropriate, rewarded for achievement, could be similarly effective for diversity.

Sponsored

To foster a successful diversity program, McKinsey recommends for an organization to create a clear value proposition for having a diverse and inclusive culture and set a few clear targets (not quotas) that balance complexity with cohesiveness. To combat discriminatory tendencies, a law firm’s decisions should be based on merit and not personal bias or for some other subjective reason. Hiring qualified candidates from diverse backgrounds does not lower the bar, it helps organizations to overcome unconscious bias.

There is a big difference between goals and quotas. Goals are aspirational. In reality, these diversity goals may never be achieved. But failure to solve the diversity crisis in the legal profession should not be for lack of effort. Law firms that aspire to be more diverse can and should share their clear numerical targets for diversity.

We already know what we need to do to improve diversity in the legal profession. The question is, are we willing to do it?

Renwei Chung is the DEI Columnist at Above the Law. He currently serves as a Board Advisor for The Diversity Movement (TDM), whose integrated approach enables law firms to build and strengthen culture by tying real-world business outcomes to DEI initiatives via a scalable subscription-based employee experience platform. And he is excited to host TDM’s and Footnote 4’s new podcast Charge the Wave — focused on entrepreneurs, executives, and icons who are assiduously building companies, cultures, and communities.

Topics

, , , ,