Quotas, targets, or what can the legal profession learn from American football?

Rob Marrs, the Law Society's head of education, discusses career progression in the profession and if setting quotas works.

Over the last few years there has been increasing discussion of how professions get progression right for all of their employees. Are we getting it right in Scots law? It seems that the so-called tipping point of 30% isn’t quite being reached across the legal professions. Wherever we look, be it partners, solicitor advocate, advocates, QCs, sheriffs, and senators the percentage of women holding that senior title is always below 30%. Given women have outnumbered men at entrance to the solicitor profession for over 20 years this doesn’t easily stack up. So what is to be done? Should we leave progress to inevitability? Or should we act? And if so, how?

Let’s start with a controversial option to get the debate going: quotas. The concept of quotas is hardly a new one but is generally considered contentious. People tend to be for or against but the thing is: nuance isn’t our enemy and complexity is not a vice.

Quotas are no longer some minority belief or only aired by feminist campaign groups which the mainstream can ignore. Rather quotas are a mainstream view. Supporters include Christine Lagarde (the managing director of the IMF and formerly chair of Baker & Mackenzie); Sheryl Sandberg, the Chief Operating Officer of Facebook; Carlos Ghosn, the CEO of Renault-Nissan; Jayne-Anne Gadhia, the CEO of Virgin Money (and author of a major report into equality into financial services), and David Isaac, the chair of the Equality & Human Rights Commission and a partner at Pinsent Masons. These are men and women at the very highest end of business.

The arguments against are well-known. If a woman is appointed under a quota-based system, so the line goes, she would never know if she got the position because she was the best person for the role or if she got it simply because of her gender. Moreover, others may perceive that any woman who achieved success did so because of the quota: whether that is true or not. Fundamentally there is a belief that quotas are anti-meritocratic. (Geeky note: The man who coined the term meritocracy did so as a satire and bemoaned its widespread adoption as an inherent good).

How can we make career progression fairer?

Discrimination in hiring or promotion is unlawful except where there are two equally qualified candidates in which case decisions can be made to appoint a candidate from an under-represented background. But before we consider the legalities (yes, I know…) let’s talk about the rights and wrongs: Should we consider introducing quotas or targets? Targets – that a certain percentage of a role should be undertaken by a particular geneder – are a little different from quotas. One of the questions in the Profile of the Profession survey looks at various ways in which we could make progression fairer.

The problem with the arguments against is that they are always based on an assumption that it assumes the current system allocates senior roles perfectly. It assumes no Buggins’ Turn; no jobs for the boys; no old school tie; no tap on the shoulder; no conscious or unconscious bias; no ‘’his face doesn’t quite fit here’.  Hell, it assumes no poor recruitment or promotion decisions! More than that all of that: it assumes a fair, dispassionate assessment of candidates against an objective and correct matrix of skills and knowledge for the senior role.

If we know that that some of the poor behaviours above exist across the economy and if we know that current definitions of merit may be debatable then the argument that quotas or targets are not meritocratic become immediately less valid.

So what’s a meritocracy anyway?

Do we really believe that appointments across the country are always sound? Consider the jobs you’ve done in your life. Look up the way. There’s never been someone you thought ‘sheesh, how did they get there?’.

Are we really arguing that everybody who currently is in a leadership position got there by merit (whatever ‘merit’ means)? If the system is working (which is the logical extension of the line that we are currently operating meritocratically) why give any further thought to progression? But doesn’t it seem a little peculiar that pretty much everywhere we look: be it in business, in law, in journalism, in academia, in the civil service, in cabinet positions that more often than not men dominate significantly? It seems odd that one sex is so relentlessly meritorious.

Who defines what merit is and what it looks like? Who assesses it? If the answer is the people who have already benefitted from a system it is perhaps likely that they will define and assess merit in their own image. In a law firm what does merit look like? Billable hours? Profitability? Client origination? Recruitment and selection? Mentoring of junior colleagues? A mix of those and others? Innovation? But where do we put the emphasis and how important is each of the above?

If we accept that the current system might not be as meritocratic as we might like then we should at least give some thought to consider changing that system. If we accept – as many in the profession seem to – that we aren’t getting progression right then, well, how do we get it right?

Do quotas or targets lead to tokenism?

Quotas have been introduced at national level across Europe. Norway obliged listed companies to reserve 40% of their director seats for women. A company could be dissolved if they failed to comply. In Belgium, France and Italy firms that fail to comply with a state gender quota for boards can be fined, dissolved, or banned from paying existing directors. Germany and others have preferred ‘soft’ quotas with no sanctions.

Results have been mixed: some anti-quota fears in Norway have not been realised. There had been a concern of the lack of suitably qualified women leading to so-called ‘’golden skirts’’ (e.g. women sitting on multiple boards due to a lack of available talent). Overboarding is an issue but that is the case for men too and is a problem in countries without such mechanisms. Moreover, it seems perverse to argue that we need more women in senior ranks but then to explain that one of the difficulties in getting there is that there a lack of women with senior experience!

The worries about ‘tokenism’ too have been largely unfounded. There are examples of tokenism: LVMH appointing Bernadette Chirac, the wife of Jacque Chirac, and noting they did so as she liked fashion seems particularly egregious, but women added to LVMH’s board since that point have all either CEO or director experience. In Italy, female directors of the biggest firms were more likely to have professional qualifications than their pre-quota predecessors.

The most famous study in this area is the McKinsey’s ‘Why Diversity Matters’ which showed companies in the top quartile for gender and ethnic diversity are more likely to have financial returns above the industry median. Similar reports have been published by the CBI and CIPD. The correlation seems to suggest that when companies commit themselves to a diverse leadership, they get better results. Great minds don’t think alike. Proving causation rather than correlation is difficult though: perhaps better managed companies have wider scope to promote diversity?

Let us know your views

I once saw the General Counsel of Vodafone answer the question: were quotas to be deprecated or were they necessary? She noted that quotas were definitely to be deprecated but, importantly, they were absolutely necessary. Perhaps.

On a personal level, I am probably against but would prefer something akin to The Rooney Rule. The Rooney Rule  is a policy from American Football which requires teams interview ethnic minority candidates for senior coaching roles. This isn’t a quota. It does guarantee some people from an ethnic minority background at least get an interview. From 1920 to 2003, there had been seven coaches from an ethnic minority of NFL teams. Since then there have been 18 many of whom have held multiple roles. Most of the profession will have a view on progression, how do get it right and on quotas or targets. If you do, fill in the survey. We’d love to hear your thoughts.