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  • Writer's pictureJaap Bosman

We need Cognitive Diversity more than Diversity itself.

Updated: Mar 12, 2021

At increasingly shorter intervals, I get asked by law firms or large inhouse legal departments to have a conversation on diversity. As diversity is increasingly on the agenda, it seems the right time to take stock and to give the topic some meaningful context.

'The Wind Blows From The West'. For the most part the whole discussion on diversity started in the United States and blew over to Europe. In this context it is important to recognize that compared to Europe, the US is an entirely different society. Racial segregation was still very much a thing of the present in the 1960-ties. I remember listening to a recording of an interview with Muhammad Ali in which he recalls that even after winning the Olympic Gold Medal in 1960 he was refused to enter a fancy restaurant in downtown Louisville, his hometown.

Historically, this kind of practice is reasonably recent and it is still very much a part of living memory in the US. In the past decades serious efforts have been made to improve the position of African Americans, but there is still a long, long way to go. The emphasis on diversity and inclusiveness in the legal industry reflects this.

In Europe we do not have a recent history of racial segregation, partly because non-Caucasians have traditionally always been an ‘invisible’ minority. Also economic opportunities are much more equally distributed in Europe. In principle everyone is granted the same access to education and social security. On top of that, ever since WW2, Europe is hyper-sensitive as it comes to keeping records on race, sexual orientation or religious believes. All of this explains that the topic of diversity in Europe is incomparable to the United States, making it impossible to put both in the same mold.

What about women

Monday 8 March 2021 was International Women’s Day, and it came as no surprise that this week we have seen a great number of news items on how women are represented in the Boardroom and in other Governing Bodies. (You will find interactive statistic here on Bloomberg). Looking at the data it is immediately apparent that on the topic of gender equality still a lot of work needs to be done, both in Europe and in the United States, as well as in most other regions around the world. Business is still dominated by (white) males. The Business of Law no exception.

Zooming in on the Business of Law, it appears that there is a significant disparity between lawyers in private practice and lawyers inhouse. Inhouse have a significantly higher percentage of women in senior roles. In private practice the division between men and women tends to be 50/50 for junior lawyers, with sometimes even a slight overrepresentation of female associates. These numbers dramatically change as it comes to the Equity-Partners. Even in the egalitarian Nordic countries women are vastly underrepresented in the (equity)partnerships.

Too often I have heard the argument that being a partner in a law firm is a brutal profession, which requires 24/7 availability and comes with a lot of stress. This argument seems to suggest that women simply are not up to the job and shy away when offered the opportunity to become partner. This seems like an odd argument and to see if it holds stake, let’s compare with another extremely demanding profession which also requires 24/7 availability and high levels of stress.

In December 2019 The Washington Post published an article that in the medical profession overall, male doctors still outnumber female doctors, 64 percent to 36 percent, according to 2019 data, but this was about to change as more than 60 percent of physicians under the age of 35 are female, while just under 40 percent are male. In the next-highest age bracket (35 to 44 years of age), women are the dominant gender as well – just slightly – coming in at 51.5 percent. It seems that the legal industry has ran out of excuses…

Cognitive Diversity

What once started as a quest to give African American equal opportunities in the United States, has grown into an ever expanding movement to prevent every conceivable minority from being discriminated against in a public or work environment. The main objective is no longer promoting emancipation, but preventing discrimination. Today companies are under pressure to create a class of gender neutral toilets for those who do not identify as man of woman. The most recent discussion has become toilets for transgenders, people who changed sex, as they seem to be not accepted in the toilets of their new ‘gender’. Today we have a global WOKE movement of extremely vocal activist people who are hyper sensitive to all they consider discriminatory or not politically correct. All things diverse are firmly on their agenda.

"Today’s law firms are too homogeneous"

It goes without saying that law firms should behave as decent companies and therefore not discriminate and actively work to create equal opportunities for everyone. This is just how organizations are supposed to behave. For law firms it would however be an incredible missed opportunity to only focus on gender and ethnic emancipation. The most important argument for more diversity has nothing to do with politically correct behavior. Diversity is needed to provide a better product. Today’s law firms are too homogeneous. Most lawyers whether male or female, straight or gay are from the same social and educational background. They share the same believes and tend to approach things from the same perspective, regardless of their gender or the color of their skin. Law firms have become echo-chambers of a shared vision of the world. No explaining needed that this is risky.

In the decade to come law firms will need to increase cognitive diversity. As the world around us becomes more complex, law firms need lawyers and other professionals with different backgrounds, different personal skills and above all different beliefs and visions on society. On 2 January 2020 the infamous former Downing Street top-advisor Dominic Cummings published an article in which he argues that the Government should hire more “weirdos and misfits” as well as people that don’t have the traditional Oxford/Cambridge educational background. Although I do not necessarily share Cummings’ vision on politics and on society in general, I do support his views on what it takes to create an excellent and capable team.


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