Are Women's Initiatives Meant To Fail?
Nearly every law student in the country from the oldest grad to the youngest aspirant, learns the meaning of "intent" in civil law from the case of Garratt v. Dailey.
You may not want to hurt Bill, but if you put an apple on his head, raise your shotgun and pull the trigger, the law will say you intended to kill him in the highly likely event that your William Tell act causes Bill's death.
The rule that Garratt applies to a five-year old's decision to pull out the chair out an adult woman is about to sit in is this - if the defendant knows with a substantial certainty that his act will result in harm, he must be presumed to have intended it.
Which takes us directly to law firm women's initatives. As the National Association of Women Lawyers' 2012 survey of BigLaw women's initiatives concluded, the programing offered by BigLaw to retain and promote women does not achieve its goals. Not only that, but these women's initiatives rarely have measurable promotional goals.
As the Survey reports, even though women’s initiatives have been in effect for at least a decade, "what such initiatives actually do, and the impact they have on women in firms, is all too often not clear and at worst, open to criticism bordering on cynicism." More particularly,
fewer than half of all women’s initiatives are evaluated annually by management. Similarly, fewer than half of all women’ initiatives submit written evaluations. Moreover, it is not clear that the reporting and evaluation functions focus on specific goals. Some 40% of firms report no specific criteria at all for their evaluation. Of those who report goal-related evaluation criteria, there is often no connection to concrete advancement criteria. Thus, descriptions of evaluation criteria were often along the lines of “accomplishment of goals and activities identified at the start of each year” or “number of events, quality of events, participation level.”
Based on the considerable data included in the FAWL report, it appears that law firm managers know that their women's initiatives are substantially certain to fail.
Under the rule of Garratt v. Daily, knowledge establishes intent. If we take the legal view, we must conclude that BigLaw intends its women's initiatives to fail.
Why would they do that?
Not being on the witness stand, I'm free to speculate.
Women's initiatives are meant to fail because:
- they create the appearance that BigLaw is doing everything it can to retain and promote its women;
- the appearance of equitable treatment is important to the recruitment of new associates;
- the appearance of equitable treatment is important to Fortune 500 clients, most of whom have diversity goals to fulfill; and,
- the appearance of equitable treatment gets the law firm off the hook of actually finding a way to transfer power from a system of cronyism to a system that applies objective metrics to performance which would reward lawyers for their work as much or more than for their internal politicial influence.
People in power, making lots and lots of money, do not willingly change the systems that reward them.