A new picture in D&I
While the Mansfield Rule has a certain cache, some brands are taking different approaches to address diversity, and inclusion (D&I).
Hershey is among those brands that have eschewed the Mansfield Rule in favour of devising their own D&I programs.
Angela Wilson, the company’s general counsel, IP, said Hershey has focused on equitable hiring, development, and promotions of women and people of colour as well as employees identifying as veterans, LGBTQ+, and disabled for more than a decade.
“We are intentional and focused,” she said, on advancing their careers through co-created career plans, frequent performance feedback and coaching from direct supervisors, mentorship, sponsorship, and frequent talent reviews.
Currently, 71% or 12 leaders on the brand’s legal team are female, including the vice president, deputy general counsel and assistant secretary, and the chief compliance officer.
“We do not use the Mansfield Rule to guide our D&I initiatives, but instead follow our own ambitious strategic framework, co-created with employees and external experts, to hold ourselves accountable to making a real, long-lasting impact,” she explained.
As part of its programme, Hershey requires hiring managers to select the most qualified people from diverse candidate pools and demands 50% gender diversity and 30% “people of colour” diversity on hiring slates for salaried roles.
“We have to normalise the non-white face on the podium, the wheelchair in the board room, the female voice at the microphone.” - Andrea Brewster, IP Inclusive
According to Wilson, the company’s leaders and employees collaboratively created the brand’s Pathways Project, a five-year plan to make Hershey more diverse and inclusive. This involved in-house counsel, outside counsel, and hundreds of employees working with the company’s D&I team to “co-create our enterprise diversity, equity, and inclusion framework,” she said.
“We continue to partner with our in-house counsel, outside counsel, labour economists, and other thought leaders to ensure we understand shifts in candidate availability, setting aspirational yet grounded hiring and representation goals,” Wilson added.
As a result of these efforts, Forbes ranked Hershey the number one female-friendly company in the world in 2021, and it also ranked number 10 on the Diversity’s “Top 50 Companies for Diversity.”
A different template
Jean Lee, CEO and president of the U.S.-based Minority Corporate Counsel Association (MCCA), believes brand counsel should adopt a data-focused yet collaborative and supportive approach when addressing their external counsel’s D&I efforts.
To facilitate this, the MCCA last year unveiled a new measurement tool or “scorecard” for general counsel, to assess a law firm’s D&I progress. The scorecard ranks four key categories: demographics, recruitment, retention/attrition, and promotion for women and diverse groups—particularly those from underrepresented racial and ethnic backgrounds.
Lee called the tool “both customised and comparative, allowing firms to benchmark their personal progress against that of similar-sized firms and the overall industry.”
Giant companies including Bristol-Myers Squibb, General Motors, Macy’s, Mastercard, Microsoft, Nike, Nokia, and Visa, among others, have pledged to adopt the scorecard for their external counsel, she noted.
As part of that commitment, signatories ask their law firms to provide their MCCA scorecard, which is then used as a metric to evaluate how firms are progressing in their DEI efforts.
According to the MCCA, it developed the scorecard in response to years of requests from general counsel for a transparent industry benchmark to assess DEI metrics, develop actionable policies, and drive competitive advantage.
Lee added: “Knowledge is power, and this tool provides us with the data to understand each firm’s journey on diversity, culture, and equity—which is the first step to speeding up that journey. Ultimately, that’s how our profession advances—not through soaring rhetoric or empty promises, but through accountability and concrete action.”
“A D&I policy is necessary and minimum requirements must be set; otherwise, it will remain lip service.” - Nishi Chetty, Adams & Adams
In her view, the scorecard goes further than the Mansfield Rule in terms of its rigorous data analysis and methodology.
“Definitely at ‘a bare bones minimum,’ the rule has put a focus on the importance of diversity within law firms and in corporations. The big question is what’s next? While the Mansfield Rule is good for firms to strive toward, we at MCCA are advocating for much more than that,” she explained.
To try and deliver a similar level of transparency and greater accountability in the UK, Andrea Brewster, founder and lead executive officer of IP Inclusive, created the organisation to promote greater diversity in IP after she retired from Greaves Brewster, a firm she had co-founded in 2000.
In her view, positive action including targets and data analysis is vital. “We have to normalize the non-white face on the podium, the wheelchair in the board room, the female voice at the microphone,” she urged.
“Every extra woman we employ and promote is one more role model for other female professionals, one more ambassador to attract new women in, and, importantly, one more defence against our unconscious biases. Otherwise, we will lose out on valuable, talented people as well as the benefits in terms of creativity, versatility, and productivity that a diverse workforce can bring.”
To tackle this problem, IP Inclusive has founded a senior leaders’ diversity think tank and the “Senior Leaders’ Pledge,” which encourages senior figures in brand legal departments and law firms to sign on, with the promise to work alongside more junior colleagues to effect positive change.
New beginnings
Hogan Lovells International LLP is also taking a hybrid approach. In addition to adopting the Mansfield Rule, the firm is also a founding signatory of the Race Fairness Commitment pledge, launched by Rare Recruitment in 2017.
Raphael Mokades, Rare’s founder and managing director, noted that Rare aims to help people from diverse backgrounds develop careers in elite professions, including law.
The Race Fairness Commitment requires participating organizations to make commitments around ethnicity pay-gap monitoring, retention and promotion analysis, unconscious bias training, and anti-racist policies.
“Top law firms have made enormous progress in recruiting graduate classes that are as ethnically diverse as the UK population,” Mokades said. “Achieving the same at management level means nurturing, retaining, and valuing those same classes as they become more senior, and bringing down the disproportionate attrition of ethnic minority lawyers in law firms.”
A murky picture
While it is becoming more commonplace in Canada, the UK, and the US for organisations to ask firms for race or ethnicity data, and to increasingly track this data as a means of monitoring D&I progress, the picture gets murkier when you look beyond these areas.
In many countries, including Germany, Italy, Japan, and Sweden, firms do not collect any data on the racial or ethnic identity of their citizens. In fact, it is illegal to do so in some countries such as France and Germany, where only gender diversity tracking is permitted.
This stance has drawn the ire of the United Nations, which urged in a 2021 report — Promotion and protection of the human rights and fundamental freedoms of Africans and of people of African descent against excessive use of force and other human rights violations by law enforcement officers — for countries that do not track ethnicity and sexual orientation data to start compiling data to promote better equality.
While there are diversity initiatives and diversity-themed organisational events in other European countries, they are not as systematic and structured compared to the UK and US, observed Denise Benz, senior associate at Allen & Overy.
“It is not as easy for German-based firms to measure the success and progress we make. That is one of the downsides of not being able to implement the Mansfield Rule in the way that it can be implemented in the UK and the US; we can’t track the data and measure their results in the same way.”
This, she explained, means that it is difficult to identify the specific areas that still need to be addressed.
She added that given the restrictions on data tracking, there is inevitably a greater focus on gender diversity in European countries. For example, Ms. Benz has helped launch the German chapter of ChIPs, a US-based nonprofit organisation that advances and connects women in technology, law, and policy, and she is also a member of the German initiative, Women in IP, a working group to support and advance female attorneys in her country.
But while firms may not be able to track diversity data relating to lawyers from a minority background, or those who are LGBTQ+ in Germany, Benz also contends that progress could be achieved in more informal ways.
She noted that the firm conducts regular surveys where all staff members can discuss issues that they face. It also runs unconscious bias training programs, promotes flexible and hybrid working, and has affinity and allyship groups, as well as a mentoring program for law students with a migrant background.
“Even without being able to gather the data, such initiatives create a space for members of underrepresented groups to become visible in society and in the legal industry,” Benz said.
While criteria such as racial/ethnic background or sexual orientation cannot be tracked in France either by any organization or public institution, progress can still be achieved, according to Guylène Kiesel Le Cosquer, partner, Plasseraud IP in France.
Emphasising the validity of more informal ways to effect change, she credited the firm’s membership in several professional organisations with helping the firm secure greater D&I.
For example, she noted, as a member of the French Association of Diversity Managers, participants regularly discuss and exchange views with the diversity actors of member organisations, including companies, institutions, public organisations, local authorities, and associations on best practices in the field of diversity.
The firm also hosts the Annual Meeting of the Women in IP Law Committee of the American Intellectual Property Law Association in France to promote awareness of diversity issues—in particular, to inspire women in the field of IP and help them achieve their potential.
As evidenced by these activities, Le Cosquer enthused, “Our firm is strongly committed to equal opportunities for all, whether it be gender, ethnicity, sexual orientation, education, national origins, or disability.”
She pointed out that 40% of the firm’s partners are women, well above the national levels in the UK and the US, and half of its 14 offices are managed or co-managed by women.
A fluid approach
In fact, some law firm leaders espouse a more organic, less structured approach, and deliberately eschew the imposition of targets.
For example, BARLAW—Barrera & Asociados in Peru is the first IP boutique in that country to be led by women and to feature an all-women partnership—although managing partner Adriana Barrera describes the firm as “naturally diverse.”
“At BARLAW, we are always focused on ensuring that D&I is a natural way of working and doing things. We do not try to put in place rules or reach any percentages,” she insisted.
While she acknowledged that initiatives such as the Mansfield Rule are “significant and may help to promote D&I in the legal sector,” she has not yet been tempted to adopt these types of initiatives in her own firm.
“We measure everyone according to their skills and capabilities for the position they are applying for, and we are open to having diverse people,” Barrera said. “We live and breathe diversity, inclusion, and equality.”
She added: “There should be equal opportunities for any person interested in any position. If they have the right skills, then they should be hired regardless of gender, ethnicity, or background.”
She believes that while the Mansfield Rule may address inequality, she is concerned that its adoption could potentially lead to “hypocritical hiring” decisions—for example, hiring people based on their gender or ethnicity rather than their ability. This, she argued, could lead to negative outcomes for both the candidate and the firm.
She is also unconvinced about the merits of linking financial compensation to D&I efforts. Rather, she believes a softer stance can also achieve results.
“I do not think that bonuses and compensation should be linked with D&I efforts, as I feel that it stems from a true effort from leaders to support and promote D&I. I insist that leaders must take DEI issues as part of the vision and goals of the company,” she explained.
In contrast, Brewster and Lee both “absolutely” insist that bonuses and compensation should be linked more to D&I. Noted Brewster: “Compensation is key. In this way, firms will start to change or will be forced to.”
Difficult legacies
Other firms have taken a markedly different approach, finding it necessary to impose their own stringent quotas in response to their country’s history and legacy of racial inequality.
Nishi Chetty, partner at Adams & Adams in South Africa, said the firm recognises “the importance of redressing the legacy of inequality in South Africa and of advancing diversity and inclusion in society.”
“A D&I policy is necessary and minimum requirements must be set; otherwise, it will remain lip service,” she said, noting, “Our focus, as a South African firm, is on broader diversity, to reflect the diversity of the country.”
To meet this goal, Chetty explained, the firm has established mechanisms designed to enhance its ability to attract, develop, and promote persons of colour, with a focus on female candidates, into the partnership in all practice areas.
Further, to promote and sustain these efforts, it has created a D&I Committee which engages regularly on aspects such as recruitment and development, mentorship, partner relations, transformation initiatives, gender equality and inclusivity issues, and the specific challenges experienced by these professionals.
Initiatives include a scholarship program for students of colour and a policy to ensure that at least half of all professional promotions, including to partners, are attorneys of colour, she continued. In addition, the firm aims to achieve an 80% intake of trainee attorneys of colour, she said, and over the last six years it has achieved an intake of 68%with approximately 80% females.
An extra boost
While many companies and firms have taken different approaches to the pressing focus on D&I, it seems as though the cries for change and results are at last being heard.
But Brewster drew some interesting comparisons to encapsulate the legal sector’s journey toward greater D&I.
“I like to think of it in terms of a space shuttle that needs an extra boost to pull it out of earth’s orbit before it can settle down to a steadier pace—or the chemical reaction that needs an input of energy to reach equilibrium on the other side. We all need that push to focus our minds on whether our D&I efforts are effective,” she said.
“The closer you get to that target, the more different voices you’ll bring on board.”
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