In this extract from Ark Group’s The Diversity Agenda: Lessons and Guidance from the Legal Profession - Wesley D. Bizzell – senior assistant general counsel for Altria Client Services and president-elect of the National LGBT Bar Association – tackles the issue of being LGBTQ in the legal profession and presents ways in which firms can build opportunities and create pipelines for their staff of differing sexual orientations. Drawing from both his professional expertise and his personal experience, Wesley outlines methods for implementing cultural change and asserts that establishing an open and welcoming working environment is the first proactive step a firm can take. Pragmatic guidance is offered by Wesley with regard to creating conditions in which both employee and wider organizational authenticity is key.
Over the past few years, I have been privileged to visit numerous sites that were important in the struggle for civil rights in America – Central High School and Daisy Bates’ home in Little Rock; Brown Chapel AME Church and the Edmund Pettus Bridge in Selma; Medgar Evers’ home in Jackson; the 16th Street Baptist Church and Kelly Ingram Park in Birmingham; the Dexter Avenue Baptist Church and parsonage in Montgomery; the Dr. Martin Luther King, Jr. Historic District in Atlanta; and many others. During these visits and in my conversations with those who were on the front lines fighting for equality, I was often reminded of Margaret Meade’s inspiring observation: “Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.” As we mark the 50th anniversary of the assassination of Dr. Martin Luther King, Jr., we also celebrate Dr. King as well as the brave men, women and children who marched bravely, advocated eloquently, and – despite tremendous odds – magnificently changed the US and the world, helping to bend the moral universe’s arc towards justice.
Even today, that arc still must be bent. While much progress has been made over the past decades, much work remains to increase diversity, inclusion, and equality in both corporate America and the legal community. Consequently, we still need thoughtful and committed individuals dedicated to ensuring that our society and our workplaces are welcoming to all individuals, including those who identify as lesbian, gay, bisexual, transgender, and queer (LGBTQ). In my experience, most companies, law firms, and their leaders are thoughtful and want to support their LGBTQ employees. However, they may not fully understand the workplace challenges faced by this community or how to address them.
Unfortunately, no single policy, program, or practice will solve the lack of LGBTQ representation in corporations and law firms. In fact, all of us who are involved in this work know it is not a destination that we finally reach one day. A company is never going to be able to complete the “task”, check the box, and move on. In contrast, achieving diversity, inclusion, and equality is a journey that has multiple milestones. This chapter begins with the basic policies, programs, and practices a company or law firm should adopt to attract and retain LGBTQ employees. It also discusses how to go beyond those basics to forge a better, more inclusive, and more authentic corporate culture that truly embraces all diverse employees, including those who identify as LGBTQ. However, these efforts must be integrated into the organization’s business and day-to-day activities. In order to succeed, such efforts cannot simply be bolted-on; other groups of employees cannot be an afterthought. Instead, they have to be rooted in the organization’s culture, coupled with the organization’s overall business strategy, and treated as a business-critical priority.
Where we are
Over the last 50 years, countless articles have been written providing the business case for diversity, including LGBTQ diversity. In fact, a Google search for “business case for diversity” yields over 27.1 million hits, many of which offer compelling and persuasive data on the benefits of a diverse and inclusive workplace. I will therefore not focus on the multitude of reasons that diversity, and in this case LGBTQ diversity, is vital for an organization’s success.
That said, it is important to note our starting points – that LGBTQ individuals (along with other diverse individuals) are woefully underrepresented in the senior management of corporations and in the partnership ranks of law firms, and LGBTQ animus and discrimination in the workplace continues to exist. The US Commission on Civil Rights estimates that between 5.4 million and 8.2 million employees self-identify as LGBTQ, with the vast majority (85.33 percent) working in the private sector. However, in corporate America, the number of LGBTQ CEOs and general counsels in the Fortune 500 can be counted on a single hand, and less than one half of one percent (0.03 percent) of directors of Fortune 500 companies are openly LGBTQ. For law firms, only 1.99 percent of law firm partners identified as LGBTQ in 2017.
Unfortunately, but unsurprisingly, many LGBTQ individuals also continue to face discrimination in the workplace, at rates much higher than other groups of employees. According to a report published by Out & Equal in 2017:
· One in four LGBTQ employees has reported they experienced employment discrimination in the last five years;
· 27 percent of transgender people who held or applied for a job in the last year reported being fired, not hired, or denied a promotion due to their gender identity; and
· Nearly one in ten LGBTQ employees has left a job because the environment was unwelcoming.
Clearly, LGBTQ individuals continue to face challenges both in our society at large and in the workplace. The intersectionality of race, gender, and ethnicity makes these statistics even more troubling. LGBTQ employees of color face significantly higher rates of discrimination than their white counterparts.9 Thus, it is not surprising that the Out Now Global LGBT2020 Study, which surveyed more than 100,000 LGBTQ individuals, found that 24 percent of lesbians, 30 percent of gay men, 40 percent of bisexuals, and 55 percent of transgender employees in the US believed that coming out could negatively impact future promotions.
A groundbreaking study of the legal profession, currently being conducted by the American Bar Association in partnership with Syracuse University’s Burton Blatt Institute, will shed additional light on the challenges facing LGBTQ lawyers in both law firms and corporate law departments.
Further, all of us who are LGBTQ know that coming out is not a one-time occurrence. LGBTQ individuals come out throughout their careers. Coming out happens every time we change jobs, meet new colleagues, secure new clients, or move to a new office location. For us, it occurs when we place photos of our spouses or partners on our desk and when we discuss our weekend plans in casual conversations with colleagues. The willingness of LGBTQ employees to be authentic in such situations hinges on how they believe their boss, their colleagues, and their clients will react. Sadly, too many LGBTQ employees read the situation and conclude it is necessary to hide their sexual orientation and gender identity in the workplace. A 2016 report from Credit Suisse states that 41 percent of LGBTQ workers in the US and 72 percent of senior LGBTQ executives say they have not come out openly at work.
Such covering is harmful to both the employee and the organization, detrimentally affecting individual employee morale, engagement, and retention.
As a result, it remains important for all law firms and corporations to examine their practices, policies, and procedures to ensure that they are not only welcoming of LGBTQ employees, but that those employees can grow, thrive, and advance in their careers within that organization.
Advancing to the basics
Even today, a large number of companies and law firms are just beginning the journey for diversity, inclusion, and equality as it relates to their LGBTQ employees. Although it may appear to be an overwhelming task, there are a number of immediate steps a company or law firm can take to intentionally and proactively foster an inclusive and welcoming culture. Although these steps may be simple, they can quickly engender extremely positive outcomes.
Inclusive workplace policies
The starting point for any corporation or law firm should be examining its existing non-discrimination and anti-harassment policies to confirm the policies specifically cover LGBTQ employees. While some states and localities have enacted workplace protections for LGBTQ employees, the vast majority of jurisdictions have no such laws in place. As of 2018, only 20 states explicitly provide workplace protections on the basis of gender identity, and 22 on the basis of sexual orientation.
Thus, it is crucially important that an organization’s policies clearly and specifically prohibit discrimination and harassment based on a person’s real or perceived sexual orientation, gender identity, or gender expression. Thankfully, most large organizations already have such inclusive workplace policies. According to the 2017 Human Rights Campaign’s Corporate Equality Index, 91 percent of the Fortune 500 have a non-discrimination policy that includes sexual orientation, and 83 percent have a policy that includes gender identity.
Commitment from leadership
As a compliance attorney, I frequently cite “tone at the top” to describe the importance of senior management in promoting ethical behavior and creating a culture of compliance. Likewise, a law firm’s or corporation’s leadership must be passionate and outspoken advocates for diversity, inclusion, and equality. Leaders must visibly walk the talk, or their employees will conclude that these ideals are not truly valued by the organization.
Parity in benefits for LGBTQ employees
Another foundational element is LGBTQ-inclusive benefits. Three areas should be specifically examined: benefits for transgender employees, fertility treatment for same-sex couples, and parental leave policies for same-sex couples.
For employer-provided healthcare benefits, all transgender exclusions should be removed, and clinical guidelines should permit coverage for mental health counseling, hormone therapy, medical visits, surgical procedures, and other treatments related to gender transition.
An increasing number (58 percent) of the Fortune 500 are now comprehensively providing transgender-inclusive health care coverage.
Additionally, same-sex couples who are utilizing fertility treatments to create a family are often treated differently than heterosexual couples because insurance policies routinely require a medical diagnosis of infertility. While a same-sex couple may not be clinically infertile, they nonetheless are unable to biologically conceive a child together. Removing this infertility requirement makes conception services available to all employees, including same-sex couples. While many companies have not yet embraced this change, Intel and Johnson & Johnson are two companies leading on this issue.
Many same-sex couples build their families through adoption or surrogacy. An organization’s parental leave benefits should be provided to all new parents – maternal, paternal, adoptive, or surrogacy-assisted – regardless of how the family is formed.
A company’s or law firm’s efforts on diversity, inclusion, and equality are of limited value if the organization is not communicating those efforts to its workforce and the public at large. When those efforts are not internally and externally publicized, many will doubt the organization’s commitment to a truly inclusive workplace. A regularly updated, comprehensive webpage not only informs current employees and job candidates, but it also celebrates the advances the organization is making. One best practice is for the webpage to include metrics related to diverse employees, data on supplier diversity efforts, highlights of its diversity-related recruitment activities, and information on the organization’s strategic diversity initiatives.
Expansion of the talent pool
A company or law firm must broaden its recruitment strategy if it seeks to have a diverse talent pool. A number of LGBTQ organizations host annual recruitment opportunities, including the National LGBT Bar Association’s Lavender Law Conference, the Out & Equal Workplace Summit, and the Reaching Out MBA Career Expo. A law firm or corporation can also sponsor networking opportunities with LGBTQ organizations at area universities and law schools or with local LGBTQ bar associations.
Of course, data tracking must be a part of such outreach to ensure measurable improvements in diverse hiring are occurring.
Education to equip management
Many corporate leaders, even those who consider themselves “progressive,” may not be fully knowledgeable about the LGBTQ community. For example, when discussing the “Q” in LGBTQ, I am often asked: “Isn’t the term queer offensive?”. Knowledge is powerful, and the more leaders understand the LGBTQ experience, the better allies they can become.
To address these types of issues, my company’s LGBTQ employee resource group (ERG) recently partnered with a local organization to create a voluntary “LGBTQ 101” workshop for executives, and we have reached over 85 percent of company executives just in the first four months of 2018. After providing basic information about the LGBTQ community, participants are asked to imagine themselves as various types of new LGBTQ employees (i.e., a transgender employee, a lesbian employee, and an employee who is gender non-conforming). They are then asked to imagine what would they hope for, what they worry about, and what the individual would want in order to feel welcome. It has been a powerful workshop that both educates and evokes empathy.
Going beyond the basics
While the basic policies, programs, and processes highlighted above demonstrate a commitment to a diverse and inclusive workplace, organizations need to move beyond mere commitment. Organizations must ensure they are actually hiring, retaining, and promoting diverse talent. Aspirations and commitments are important but are not sufficient.
Establishment of an LGBTQ employee resource group
Creating an LGBTQ ERG will reap multiple benefits, if thoughtfully structured. ERGs are employee-led networks where members join together based on shared demographic factors such as gender, race, ethnicity, or LGBTQ status. ERGs can help drive change and foster a diverse and inclusive workplace, while at the same time helping the organization meet its business objectives. Thus, effective ERGs cannot merely be social networks. If the company or law firm is too small to sustain specific ERGs, a more general diversity ERG might be a satisfactory alternative.
ERGs are a vital component to demonstrating a commitment to diversity, inclusion, and equality. However, they are not a panacea; ERGs cannot be the sole entity within the organization advancing diversity and inclusion policies, programs, and processes. While ERGs have an extremely important role to play, senior management cannot abdicate responsibility for diversity and inclusion to ERGs. ERGs should serve as a catalyst for change, be thought leaders on diversity and inclusion, and be a sounding board for senior management, but ERGs should not be seen as the only advocates for cultural change. Leadership needs to step up too.
A successful ERG allows employees to be valued, engaged, and challenged to contribute to the organization.19 This creates networking and leadership opportunities for these diverse employees and also provides greater visibility with and access to senior executives. Because it allows LGBTQ employees to be a more visible part of the culture, it encourages LGBTQ employees to, as DeRay Mckesson describes it, “come out of the quiet”.20 In this way, an ERG allows LGBTQ employees who have been quietly out at work to also be visibly out, where they are seen and heard as their full, authentic selves.
As one of the founders of my company’s LGBTQ ERG, I have witnessed first-hand the power of an ERG to create a better, more inclusive, and more authentic corporate culture. The ERG has empowered my company’s LGBTQ employees to be more visible, and it has encouraged sometimes difficult but always necessary conversations about difference, intersectionality, sexual orientation, gender identity, and gender expression.
As importantly, it has inspired allies to stand up and be counted as caring about diversity and inclusion for LGBTQ employees. One of the recent activities of my company’s LGBTQ ERG beautifully illustrates these points. Last year, the ERG published a short booklet that contained various employees’ coming out stories; this year, we turned those stories into short podcasts. A longtime employee used this as an opportunity to come out to her colleagues, something she had never previously done in her decades with the company. After the publication of this woman’s story, an ally told us how inspiring these coming out stories were and how they moved her to be a more vocal and visible ally.
Another employee told us how these stories gave her the courage to come out to her supervisor and her colleagues. An active LGBTQ ERG can be a powerful force for cultural change within a company and a law firm, tremendously benefiting both straight and LGBTQ employees.
The leadership of corporations and law firms must not only be vocally supportive of their organization’s diversity, inclusion, and equality efforts, but they must also be accountable for them. One method to drive accountability is the formation of an executive diversity council, led by the company’s CEO or the law firm’s managing partner and composed of other senior leaders. This council sets and governs the organization’s diversity and inclusion strategy and through regular meetings serves to focus leaders’ time and attention on these important issues. Another more controversial but extremely effective method is incorporating diversity, inclusion, and equality requirements in the formal evaluation process for leaders, where their advancement and compensation is tied to certain diversity and inclusion milestones.
Although each LGBTQ employee has had his or her own diverse experience, we all have one thing in common – we have each taken a journey in order to be ready to tell others who we are. Thus, all of us understand how important it is to be yourself and be included – both in life and in the workplace. While Federal laws require organizations to capture certain information related to the diversity of their workforces, there is no requirement to obtain data about LGBTQ employees.
A best-practice in this area is asking employees to voluntarily self-identify their sexual orientation, gender identity, and gender expression. Being counted is vital to ensuring that an organization fosters a diverse workplace where everyone is able to be heard, included, and valued. A self-identification process through existing human resources systems helps an organization improve recruitment, development, and advancement of LGBTQ employees and also allows it to track progress for its LGBTQ inclusion efforts, in the same way it does for other diverse employee populations.
While the data may be used for statistical analysis and tracking, personally identifiable information should always be kept confidential and should not be shared with an employee’s manager or co-workers.
Measurement of LGBTQ promotion and advancement
Utilizing the self-identification data, an organization must also actively monitor promotions and advancements to ensure LGBTQ employees are not being left behind. The best diversity programs cannot help someone seize an opportunity that never materializes. Thus, an organization must use data – not anecdotal evidence – to ensure LGBTQ employees are given the opportunities to progress.
Gender transition framework
Law firms and companies must welcome and embrace transgender employees who are transitioning in the workplace. To ensure this occurs, these organizations should have a clear and understandable framework on how the organization responds when an employee indicates they will transition. Understandably, this may be an enormously stressful moment for the employee, and written guidelines, created in advance, will help provide structure to support a respectful and successful workplace transition for the employee.
While the framework should comprehensively address how the company will work with an employee, it is important to remember that each employee’s situation will be unique. Every step of the process must hinge on the employee’s consent, and the framework should reiterate the need for privacy and confidentiality. In addition, the framework should clearly set out expectations for all involved, including, HR, management, the employee’s immediate team members, as well as other colleagues.
Executive leadership programs
While LGBTQ leaders face many of the same challenges as other leaders, they do so in the context of their identity as a diverse individual. For LGBTQ employees, leading as their authentic self can seem frightening, and executive leadership programs can help such individuals understand the power of authenticity.
A number of excellent leadership courses have been developed that focus on LGBTQ and other diverse individuals, including Stanford University’s Graduate School of Business LGBTQ Executive Leadership Program (focusing on LGBTQ individuals who work in corporations, non-profits, and law firms) and the Leadership Council on Legal Diversity (focusing on in-house and outside counsel who are diverse). A company or law firm should actively encourage high-potential employees to participate in such programs and underwrite such costs as part of the employee’s leadership development. Doing so indicates that the organization is investing in its LGBTQ employees and provides an opportunity for LGBTQ employees to further develop their leadership skills and expand their network.
Philanthropy and community engagement
Companies and law firms are often involved in national and local civic organizations and bar associations. Many contribute to these organizations, volunteer, provide pro bono representation, or have employees serve in leadership roles, such as on the organization’s board of directors or steering committee. Ensuring that LGBTQ organizations are included clearly demonstrates the company’s or law firm’s commitment to diversity, inclusion, and equality.
Supplier diversity initiatives ensure that minority-, women-, veteran- and, LGBTQ-owned businesses have access to procurement opportunities at corporations and law firms. A company’s or law firm’s supplier diversity efforts should specifically include LGBTQ suppliers. Since 2004, the National LGBT Chamber of Commerce has been the certification body that verifies that eligible businesses are majority-owned by LGBT individuals. 24 Of course, merely having such a program is not enough; the organization must use data to ensure the program is effectively engaging diverse suppliers.
Speaking out and standing up
A growing number of corporations and law firms are also speaking out in favor of LGBTQ equality issues and standing up when the rights of LGBTQ people come under attack. In recent years, when discriminatory legislation has been advanced at the Federal, state, or local level, many business organizations have rightfully denounced such attacks. For example, in 2016 executives from more than 100 companies, including many Fortune 500 companies, signed an open letter requesting that the North Carolina Governor repeal anti-LGBTQ House Bill 2.25 Many (but not all) of the discriminatory provisions of that legislation were later repealed, due in part to the vocal and sustained business outcry.
As this chapter illustrates, there are many strategic insights and tactical actions companies and law firms can take to ensure their workplaces not only are open and welcoming to LGBTQ employees but that diversity, inclusion, and equality are ongoing business objectives and corporate obligations.26 My hope is that this chapter serves as less of a checklist and more of a motivating guide, where individual corporations and law firms build upon these guidelines to implement concrete initiatives to achieve their own successes. While it will always be a journey, by implementing such policies, programs, and processes corporations and law firms can create positive cultural change and continue to ensure that the arc of the moral universe continues to bend towards greater justice.
This extract is taken from Ark Group’s The Diversity Agenda: Lessons and Guidance from the Legal Profession – available now