The imbalance of ethnic minority partners needs to be addressed. But how?

Diversity in the legal profession, judging by two separate calls for quotas, is still an issue that needs to be addressed.

A report published today from Sir Geoffrey Bindman QC and Karon Monaghan QC, recommends introducing a quota system to address the under-representation of women and people from ethnic minorities in the senior judiciary, including the Supreme Court.

Meanwhile Cordella Bart-Stewart, a founder of the Black Solicitors Network (BSN), has called for legal regulators to consider introducing quotas, following the publication of the 2014 BSN Diversity League Table.

One notable finding was that only 5.7% of law firm partners are from an ethnic minority background. Almost half of these (3.1% overall) are from an Asian background, with the proportion of black solicitors just 0.5%.

The result was based on a sample of only 41 firms. But had each one of the top 150 UK firms and 30 leading international firms with UK bases that the BSN approached responded to the survey, would the results have been significantly different?

Bart-Stewart’s comments sparked a heated debate among Gazette commenters. ‘Patronising’ said one, ‘primitive’ exclaimed another.

One commenter declared: ‘I couldn’t give two hoots what colour, creed, sexual bias etc my employees are, all I care about is that they work hard… .’

But can we honestly say the rest of the legal profession think the same, that they ‘couldn’t give two hoots’ either? Why else, then, are there so few black and ethnic minority partners? Or are we saying they are simply not interested in becoming a partner, or that so many of them are simply not as good as their non-black/ethnic minority counterparts?

To see whether quotas could work, one need only look to the US, specifically the National Football League (NFL).

Since 2003 the NFL has applied the ‘Rooney Rule’, named after Dan Rooney, owner of the Pittsburgh Steelers and chairman of the NFL’s workplace diversity committee.

The rule requires NFL teams to interview at least one black or ethnic minority candidate for head coaching and senior football operating opportunities that become available. But it is not compulsory to hire the candidate for any role.

At the start of the 2006 season, the overall percentage of African-American coaches climbed to 22%, up from 6% prior to the rule being introduced.

Having quotas in place is legal in the UK, whether it be for people from an ethnic minority background at partner level, for women on the management board, or for any other protected characteristic such as age, religion or sexual orientation.

The real challenge, says Karen Baxter, partner in the employment, rewards and immigration team at Lewis Silkin, is how you go about filling that quota.

‘From a legal perspective, positive discrimination is not permitted under the UK’s Equality Act, so firms cannot choose a candidate for a role or a promotion simply because they are a woman or from an ethnic minority background,’ she says.

‘To do so would give a discrimination claim to the unsuccessful candidate who was turned down because they were a man or white.’

‘Positive action’, Baxter says, is as far as firms are permitted to go. ‘This permits a firm to take proportionate action to address specific obstacles that an under-represented protected group might encounter. For example, a law firm might offer specialist coaching to help members of an under-represented group progress through their career.’

When two equally qualified candidates are eligible for a position - a ‘tie break’ scenario - firms are allowed to choose a candidate from an under-represented group in preference over the other candidate – a move made possible by the Equality Act 2010.

‘Firms have been rightly nervous about relying on this provision due to the risk of wrongly judging the candidates to have equal qualifications for the role and then being on the hook for a discrimination claim from the unsuccessful candidate,’ notes Baxter.

‘Even if these legal obstacles can be cleared, there is a serious employment relations issue which arises from quotas. I have yet to meet a single person who would be happy to know that they got their job because of the colour of their skin, their gender, or basically anything other than their skills as a lawyer, professional or manager.’

Ideally, the legal profession can achieve diversity without the need for quotas and targets. But until we see a rise in the number of black and ethnic minority solicitors further up the hierarchy, we must keep the conversation about diversity going, even if we can’t agree (yet) on what the problem/solution is.

Monidipa Fouzder is a Gazette staff writer