Bridging the Gap – the Case for Race-Based Data

“We need to collect race-based data” – this is the latest phrase to enter recent mainstream conversations about how to combat oppressive hiring practices within law firms and legal departments.

Race-based data refers to information that is collected, analyzed, and reported based on an individual’s racial or ethnic identity. It can then be used to identify and track disparities in health outcomes, education, employment, and other social and economic factors that may be influenced by race.

The data can also serve as a critical tool for understanding how legal employers hire, retain, and promote lawyers. You may already use race-based data as part of your organization’s diversity, equity, and inclusion (DEI) strategy, but if you don’t, this article may convince you to start.

Building a case for race-based data

Race-based data can help identify disparities in hiring amongst lawyers from different racial and ethnic backgrounds. For example, if data shows that a law firm is consistently hiring primarily white lawyers over lawyers of other racial and ethnic backgrounds, this may indicate that there is implicit bias in the hiring process.

Similarly, race-based data can identify whether lawyers from underrepresented groups are more likely to leave their current firms than their white counterparts. In such cases, it is likely that the firm is not creating an inclusive environment or may be subject to systemic biases that affect retention.

Race-based data can also help to identify disparities in promotions. For example, if data shows racialized lawyers are less likely to be promoted to partnership or leadership positions, it is reasonable to suspect that there are systemic biases or barriers to advancement within the firm that need to be addressed.

Race-based data can be instrumental in transforming the current landscape of the legal industry, which has been criticized by many as being overwhelmingly white (and male). By analyzing this data, firms can identify disparities and biases that may be affecting diversity and equity within the legal profession and take proactive steps to address them. This can ultimately lead to a more diverse, inclusive, and equitable legal profession that better serves the needs of all communities. But how can firms go about attaining this data?

Laying a foundation for DEI initiatives

Race-based data can be collected in a variety of ways, but what is likely the most reliable means of collection is self-identification. HR or DEI departments can ask articling students, associates, partners, counsel, and support staff to self-identify their race and ethnic background, which can be done through a voluntary survey or questionnaire.

It is important this information is kept entirely confidential and only used for the express purpose of analyzing and improving diversity and equity within the firm. Once the race-based data is collected, either members of the DEI department, the HR team, or external reviewers can analyze the data to identify patterns and disparities at all levels of the firm. However, it is important to note that the collection and use of race-based data can be controversial.

Cases against the usage of race-based data

Some critics of race-based data as a standard DEI practice believe the data can perpetuate stereotypes and lead to further stigmatization of certain racial groups. For example, if a particular racial group is found to be overrepresented in what can be perceived as a ‘negative’ category (such as desiring more time off), it can reinforce negative stereotypes about that group.

I would argue that although these stereotypes may be reinforced, the collection of race-based data within law firms is only effective when it is established under the framework of a comprehensive DEI strategy and coupled with a frank, firm-wide discussion about the purpose of the collection of said data: to offer the team a chance to lean in and learn about the experiences of their colleagues. Once this is made a priority, the risk of inappropriate use is lessened. Further to this, reviewers could allow survey-takers to include a short explanation of their reasoning for their answers to each survey question, providing more context and insight into their experiences and promote better understanding rather than ostracization.

Other critics cite valid ethical concerns, such as the fear that the collection of race-based data can infringe upon privacy and consent, as well as cause potential harm to marginalized individuals or groups by being used against them. It is for this reason that HR/DEI departments within law firms should be transparent about their data collection methods and analysis processes and should make the results available to all employees. This promotes accountability and can help to build trust with employees and other stakeholders.

Additionally, it is essential to monitor and analyze race-based data on a regular basis to identify trends and changes in the representation of different racial and ethnic groups within the firm. This allows legal employers to assess progress and adjust strategies as needed to promote greater diversity and equity within the workplace.

Others argue that while race-based data can be useful for identifying disparities and addressing inequalities, it is not a sufficient or comprehensive approach to understanding complex social issues. Other factors, such as socioeconomic status, education, sexuality, ability/disability, religion, political affiliation, immigration status, and geography, can be equally or more important in shaping outcomes within law firms and legal departments.

This is true, and race-based data alone is not sufficient to understand the deep nuances and complexities driving the inequalities within organizations. However, this can be mitigated by ensuring reviewers of race-based data also look to external data sources to understand the larger context of diversity and equity within the legal industry. This can include industry-wide surveys and reports that provide data on diversity and equity trends and benchmarks that are not exclusive to race or ethnicity.

Although it may not be a perfect science, gathering race-based data about internal hiring practices and workplace culture within firms is a crucial step that legal employers can take to promote greater diversity and equity within the legal industry. By analyzing this data, firms can identify inequities and take proactive steps to address them, creating a more inclusive and equitable workplace for everyone.
 

The CABL & The Counsel Network: The Black Experience in the Legal Profession Survey

The Counsel Network, in partnership with the Canadian Association of Black Lawyers (CABL) and with the support of the TD Ready Commitment, will be launching a longitudinal survey among CABL’s members and all Black Lawyers shortly. The survey will gather empirical data to capture and analyze the Black experience in the legal profession. To participate, please contact us at cablsurvey@thecounselnetwork.com.