Only Relatively Equal? – Exploring Difference and Hierarchy in Law Firms in England and Wales

1. Only Relatively Equal? – Exploring Difference and Hierarchy in Law Firms in England and Wales Elisabeth Griffiths and Steven Vaughan LERN/Sheffield Law School How do we research and teach equality and diversity in legal education settings, 16th September 2016

2. Introduction • SLSA papers given in April 2016 in the ‘unanticipated consequences’ stream. Hierarchies in the Equality Act 2010: unanticipated/unintended consequences of streamlining the law • Embryonic joint paper on ‘prioritised diversity’ between myself from Northumbria University and Dr Steven Vaughan Birmingham University. • Data gathered over the summer 2016 (thanks to Laura Kendrick, Birmingham University). Analysing the data over next 6 months • Today? Discuss my tentative questions on hierarchies in the Equality Act 2010, how this might relate to law firms, how we can teach these complex issues to law students, early findings from Steven’s research, next steps…

3. The Equality Act 2010 • Culmination of various campaigns: 1960’s race; 1970’s sex; 1980’s and 1990’s pregnancy and disability; 2000’s age, religion and belief, sexual orientation, transgender….ongoing • Up until 2010 piecemeal development of the law – myriad of statutory and regulatory provisions. Equality Act 2010 (the Act) - 5th generation of equality and anti-discrimination legislation in the UK. Response to Discrimination Law Review June 2007 • anticipated consequences:- • harmonise, simplify and modernise the old incoherent framework of laws to be enforced by a single Equality Commission • Greater clarity and consistency • Increased levels of protection

4. The Equality Act 2010 • The Act brings all protected characteristics together into one piece of legislation, all separate ‘silos’ (Solanke, 2011) but equal before the law. No hierarchies just equal treatment. • Law requires certainty but equality law involves people with not just singular characteristics but with multiple characteristics and identities which can be challenging for employers in the workplace • Finkin (2002) argues that when we enter the workplace and interact with others, we must contract away some of our privacy and autonomy. But if we give up so much of ourselves that we cease to be persons, then it must fall to the law to decided what is alienable and what is not • What do we mean by equality and what impact has the Act had? • What does this mean for the legal profession with it’s move towards increased diversity?

5. The problem with ‘equality’ • Formal equality/consistent treatment Direct discrimination s 13 Equality Act 2010 – treat like alike – when are two people sufficiently similar to be treated alike? • Formal equality does not work for some protected characteristics. Doesn’t take into account difference. So the protected characteristics are not equally treated. Organising people into groups according to their inherent characteristics – wholly negative?? • Only a relative principle – treating people equally well is the same as treating people equally badly. Levelling down as well as up • Need for a comparator problematic. The law requires us to disregard the race or sex of the parties but are we alike if we just disregard these singular characteristics – who is the comparator – white, male, Christian, able-bodied and heterosexual - is this person the ‘measure of all things’

6. The problem with ‘equality’ • Substantive Equality: Removing Barriers to equal treatment in response to criticism of formal equality indirect discrimination was introduced in 3rd generation of equality laws - s19 Equality Act 2010. Problematic • Group disadvantage: Groups of religious people/ Groups of disabled people? • Problems of justification cf. direct discrimination • Reactionary not anticipatory in employment so is dependent on people asserting their rights – more problematic because of the dependence on individual enforcement and the introduction of fees • Fails to treat people as individuals • Human Rights Perspective – equality seen as a fundamental human right. Respect for equal worth or dignity of the individual. Recognition of identity, difference and diversity • Transformative Equality - Equality of outcomes; Equality of capabilities • Social Inclusion (Collins, 2003) and Fairness

7. The Equality Act 2010 • Unintended/unanticipated consequences of the Act are to be found in some of the tensions experienced within the legal framework:- • Multiple meanings of equality and what the law is trying to achieve • Equal treatment can lead to inequality • Unequal treatment might be necessary to achieve equality which leads to more favourable treatment for some of the protected characteristics • Perceptions amongst those protected - that they are at the bottom of a ‘hierarchy’ of protected characteristics – disability, religion, sexual orientation, sex, transgender – can’t all be at the bottom! • Clashing rights and competing equalities rather than a balance • Non-discrimination rather than equality • Fails to treat people as individuals • Two examples: • Disability discrimination • Religion Vs Sexual Orientation

8. Regulating the legal profession – Prioritised diversity? • Much academic work has been done on the lack of diversity in the legal profession mostly on gender, ethnicity and, more recently, social background. • Work has been done on the formal and informal barriers over the lifetime of a lawyer, operation of law firm culture and the importance of personal relationships (see Sommerlad et al, 2010). • Law firms now have a legal obligation to collect and report diversity data. LSB report July 2011 set their agenda for diversity reporting.

9. Regulating the legal profession – Prioritised diversity? • LSB report, July 2011 “…to deliver the regulatory objectives in the Legal Services Act 2007 requires a diverse workforce (not just a diverse profession) which reflects the society it serves – a workforce that understands and can respond to the diverse needs of a diverse range of clients.” [ ] “…much of the focus has been on gender and ethnicity rather than social background and the protected characteristics in the Equality Act 2010.” David Edmonds • Basically more needs to be done…

10. Regulating the legal profession – Prioritised diversity? • The Equality Act 2010 introduced a new public sector equality duty (April 2011) – all bodies exercising public functions (including the LSB and approved regulators) to have regard to eliminating discrimination, advancing equality of opportunity between different groups and fostering good relations between different groups. • LSB asked regulators to start gathering a more comprehensive evidence base. Does this encourage more diversity? • Barriers to recruitment, retention and progression

11. So what are we doing? • Why is this important, what does it tell us about the legal profession, how are we going to bring the themes together? • Looking at the diversity data published by the SRA in 2014 and recently in October 2015. • Looking at the way law firms are trying to increase and support diversity in their workforce (Sommerlad, 2010) • Formal Mentoring, Role Models and Networks. • How is diversity enacted and managed in large law firms? • Are some groups defined by their singular protected characteristics more visible and dominant?

12. Latest SRA data report Autumn 2015 • Women: 47% of all lawyers in law firms (other staff 76%). Make up 33% of partners (31% 2014) 27% in large law firms (50 plus partners) 35% smaller firms (2 to 5 partners) • BAME: 18% of all lawyers (higher than census data for economically active people 13%). Largest law firms (50 plus partners) lowest proportion. Other staff 14% • Disability: 3% of all lawyers and 4% of other staff have a disability (10% of working age adults in employment). BUT huge proportion in comparison to other PCs (except religion and sexual orientation) preferred not to say. • Sexual Orientation: 97% heterosexual (census suggests 1.5% of the general population is LGB, Stonewall estimates 5-7%) • Religion: 54% Christians, 28% no religion or belief, 8% Muslim and 3% Jewish.

13. Analysis of Internal law Firm Employee Networks

14. The Equality Act 2010 – My questions? • Developing hierarchies and tensions: • Between protected characteristics – religion and sexual orientation • Between concepts of discrimination – direct and indirect (Pitt, 2011) • Between public (PSED) and private sector employment • Single protected characteristic discrimination and intersectional discrimination • Clash of rights between protected characteristics • Balance competing interests - disability • Ever expanding through case law • Added to complexity of the law • Red Tape challenge significant impact on enforcement of equality rights and therefore can the Public Sector Equality Duty transform the equality debate?

15. Tentative conclusions when bringing the issues together • Striking that more LGBT groups than women’s networks, particularly given the number in the profession. • So few networks in relation to to other protected characteristics • Is there a preferencing of women and LGBT lawyers over other lawyers. • Query the role of demand side drivers (e.g. banking clients links with LGBT lawyers; CSR demands, Procurement drivers in the public sector) • A tournament of influence? A hierarchy of diversity?