It’s Harder for Some than Others: Is positive discrimination needed in the legal profession?

You’d have to be living a pretty sheltered life to not have heard anything about the climate in America and the United Kingdom surrounding Black Lives Matter, which came to fruition after the murder of George Floyd in May. Equally, you may have seen that earlier this year Harvey Weinstein was sentenced to 23 years in prison for rape and sexual assault, and the #MeToo movement that gathered momentum because of his actions. There has since been a call for fundamental change regarding discrimination and diversity in America and the UK. This has left a lot for companies to consider about how they can help address the issues of disproportionate class and gender representation. 

Positive discrimination is currently illegal in the UK under the Equality Act 2010 and is often confused with positive action, which is an accepted and encouraged practice. This piece will outline the differences between the two and put forward an argument for the introduction of positive discrimination initiatives within the legal profession specifically. Those who work in the legal profession might be considered the gatekeepers of the law, having a direct influence on its functioning. Although there is evidence suggesting that positive action is having an impact, in my opinion, positive discrimination is necessary to balance the scales that have been historically advantageous to white men. For the sake of keeping the scope of this article focused, race and gender will be the only two protected characteristics. 

Positive Discrimination & Positive Action

For clarity, positive discrimination is where employers deliberately hire staff from minority groups which have been knowingly discriminated against in the past, i.e. women, and Black, Asian and Minority Ethnics (BAME). The Equality Act 2010 makes positive discrimination illegal as it doesn’t treat each individual equally. Positive discrimination is an offence if an employer hires an individual based on ‘protected characteristics’ such as race, gender, age, disability, religion and sexual orientation over experience or qualifications. Opposition to positive discrimination is grounded in the fact that if you hire someone based on their gender or the colour of their skin and they are under qualified for the job, this can lead to problems for the employer regarding how the employee performs. Some may also not like that they have only got the job because of their characteristics, and not because of their own merit. Equally, those who are more qualified for the role are not considered, which is arguably unfair. 

Conversely, positive action (legal since 2011) ensures “measures are taken to support the recruitment and promotion of underrepresented minorities”. Here, if you had two applicants for a job who possess equal qualifications, the employer can choose to hire the minority group individual provided they are “fit for the role”. While many law firms do implement positive action initiatives, these do not seem to be enough to adequately balance the centuries of sexism and racism that have led to the current scenario. There is a lot statistical and anecdotal evidence highlighting how the legal profession still has notably poor rates of diversity. 

Diversity in the Legal Profession

Diversity and inclusion have been at the forefront of many law firms’ priorities in recent years. According to the SRA statistics from March 2020, 49% of law firms across the UK are made up of women, which seems to reflect a general equality in a historically white male dominated profession. SRA statistics show a slow and steady increase in the number of female partners and recently Magic Circle Firm Freshfields Bruckhaus Deringer named Georgia Dawson as the first female senior partner at the firm, reflecting a major step for the profession. However, as the SRA article points out, “the differences become more apparent when we look at seniority” since just 34% of partners were female as of 2019. 

Financial Times research also found that under half of mid-ranking lawyers (associates) and around a fifth of senior lawyers are women and that most firms only increased the proportion of women in their partnerships by a percentage point or less annually. This change truly is slow and according to an article from February 2020, specifically for family lawyers, there is a disproportionate number of white women in the profession, with over 86% of family lawyers being white. It is unsurprising that there is still a disparity when it comes to ethnicity in the legal profession. 

The SRA website notes that 21% of all lawyers in the UK are from BAME backgrounds, and this statistic has not changed since 2017. Although this is higher than the UK BAME population (14% in 2011 census), BAME candidates are still facing challenges. The challenges that stem from a candidate’s cultural capital (i.e. those who are confined by their ‘social assets’ such as education, style of speech/dress and career connections) facilitates this lack of diversity and slow progress. Currently, BAME partners in larger firms (50 or more partners) make up only 8% and in a profession such as law, which is historically elitist, it may be a while before the current system ‘balances out’ to represent the BAME community adequately. This all perpetuates the false view that only white men are capable of becoming successful lawyers, which has resulted in women and BAME lawyers being mistreated in the legal setting. 

Recently, a news story has been circulating about Alexandra Wilson, the black barrister from Essex who was mistaken for a defendant three times in one day in a courthouse. Ms Wilson is a criminal and family lawyer who said she was “absolutely exhausted” after being challenged by a security officer, a solicitor and a clerk whilst she attended the magistrates’ court. Writing for The Independent, Ms Wilson reflected on her experience, noting that “every other legal representative that day was white […] no one else was ordered to leave the courtroom and no one else was spoken to in a dismissive way”. Ms Wilson makes the point that the black community are not yet properly represented at the Bar, with only 1.1% of QCs being black, despite the black working population being estimated to be 3.7%. 

Alexandra Wilson’s story shows the elitist culture that still exists within the legal profession, which almost certainly has an impact on the way the law functions in the UK. Where white men have dominated the profession for centuries, it is not enough that more women or BAME people are slowly trickling through the system. To implement real change, should the government not be called upon to overhaul the laws regarding positive discrimination? Is there value in tipping the scales in favour for those who have historically not been given equal opportunities and giving them more opportunities? 

Is Positive Action Enough?

I appreciate that as a white woman I can understand sexual discrimination to an extent, but I do not pretend to understand the struggles of the BAME community and the hateful discrimination and racism they experience. My aim has been to be as sensitive as I can whilst considering this complex topic and pledge my allegiance as openly anti-racist. 

My point in regurgitating all these facts is to articulate that while positive action may seem like a sensible route, the statistics show that it is not doing enough, fast enough to counteract centuries of injustice. While it would be difficult to apply in all work places, the legal profession is in desperate need of greater diversity and positive discrimination initiatives seem like the most viable option to achieving this. Living in such a diverse and multicultural society, it is important that we encourage young women and members of the BAME community to strive for senior positions in the legal sphere, and it would likely encourage them more if there more people who looked like them in those senior positions. 

Although the crux of this article has been to point out the underrepresentation of minority groups in the legal profession, I appreciate that it is difficult to promote certain forms of positive discrimination, since specific qualifications are necessary in order to practice as a solicitor or barrister and it would both fraudulent and illegal to hire someone who is unqualified for the role. However, in terms of the need for work experience in the legal profession (which although not mandatory, does often sways the employer), it may be worth considering waiving the need for experience so long as the necessary degree level is met. By promoting qualified, but less experienced individuals, there may be a risk but if the candidate is enthusiastic and willing to learn, it perpetuates a positive work environment and encourages diversity on a larger scale, something long overdue in the legal profession. Just food for thought…

Emma Dangerfield

Emma is completing her MA in Law at Bristol University and is interested in employment law and litigation. She is head ambassador for the 'More from Law', which provides advice to aspiring lawyers.