The views expressed on today’s program are those of the speakers and are not the views of Today’s Workplace, the speaker’s firms or clients, and are not intended to provide legal advice.
Previous discussions with Grace Speights and Chai Feldblum regarding corporate America’s response to the murder of George Floyd provided insight about the evolution of various DE&I programs and how to establish them effectively. This week’s episode triggered the call for diversity, equity, and inclusion in the workplace for the LGBTQ community.
During this episode, our guest Robert Falk shares his insights on DEI for the LGBTQ community. Rob is a global thought leader on legal and business issues affecting nonprofit organizations. He served as general counsel of four different non profit organizations and received multiple awards in leadership positions.
Rob believes that the social phenomena of an inclusive workplace is not only the visible use of different pronouns, but also more of society’s understanding of what different types of identities and orientations mean.
There has been a lot of progress in large scale corporations regarding LGBTQ inclusion with certain policies. But the overall experience of LGBTQ individuals in corporate America may vary, depending on the individual’s personal experience with a manager and peers.In his opinion, today’s big corporations have better policies and procedures than those with a smaller number of employees creating a disparity amongst individual experiences in the workplace. In Rob’s opinion, today’s big corporations have better policies and procedures than those with a smaller number of employees responsible for creating a negative environment for LGBTQ employees.
Rob defined some key terms. Sexual orientation is one’s emotional, romantic or sexual attraction to other people. Gender identity is how an individual identifies in terms of gender. Since gender is identity is internal, one’s gender identity is not necessarily visible to others. . One’s gender identity can be the same or different from their sex assigned at birth.
Civil rights for the LGBTQ community have evolved from a point where same-sex attraction and different gender identities were criminalized in the 1970s. The LGBTQ community has fought for equal rights as those who identify as straight in our society. The movement has resulted in greater protection for LGBTQ individuals in employment, housing, and credit.
Falk noted that often people relate the term “transgender” to medical treatment, which shouldn’t be the case. A person who identifies as a trans man or woman might or might not undergo medical treatment or hormonal treatment. It remains best practice not to ask anybody about their medical treatment.
Outside the United States, the treatment of LGBTQ individuals varies since countries have varying laws on sexual orientation. In some countries, same sex relationships are illegal, creating challenges for multinational employers seeking to implement inclusive workplace laws.
The Williams Institute conducted a survey of workplace discrimination and harassment against LGBTQ individuals. Even though there has been progress, much work remains to ensure equal treatment of LGBTQ individuals in the workplace. Employers should set standards ensure that their anti-discrimination policies cover LGBTQ individuals and state that the organization does not condone discriminatory behavior or harassment.
An employer looking to revisit DEI initiatives to ensure an inclusive environment for LGBTQ employees should not worry about inventing the wheel since other organizations have done it. The Human Rights Campaign is an excellent resource.
01:34 Introducing Don Prophete
04:29 Can you tell us a little bit about your activism on issues of lawyers of color needing support in law firms?
07:39 Would you tell us the name of your firm and what’s your role?
09:12 What have you found to be the root cause of such low representation of black lawyers and law firms?
13:26 Can you share any observations of how law firms and even the corporate legal departments at law firms respond to calls for change and racial equality?
18:08 What are the concrete steps that the leadership of law firms and companies take at this point if they really want to turn this moment into a movement?
21:32 Are there any new recommendations for lawyers seeking to grow in the profession in terms of what they can do to grow their portable bank of business?
23:42 What can be done to reduce the barriers, to make people of color feel more included, and have a greater sense of belonging in majority law firms? What are some of the strategies that would work?
27:52 Can you describe any ways in which you’ve seen the Mansfield rule being
used with success in law firms?
30:30 What are the differences with respect to how millennials are experiencing and perceiving issues as compared to older individuals who entered the profession at the same time you did?
32:35 What is the cause of Black male paucity in the law firms?
33:27 What do you think it’s going to take to achieve the true transformation that will result in more attorneys of color, to become a larger force in the legal industry?
37:01 What would be three pieces of sound advice you would give to lawyers of color who were poised and ready to take their careers to the next level
Belinda: Okay. During season one of Today’s Workplace, we examine various aspects of the impact of the COVID-19 pandemic on the workplace and employees. This season, we want to turn our attention to what some call the second epidemic that impacted our communities during last summer’s murder of George Floyd at the hands of law enforcement and the period of social justice and racial reconciliation that followed. We saw Americans in cities around the country, demand racial equality and consequently, companies everywhere responded by revamping and expanding efforts to address diversity, equity, and inclusion in their organizations. Today, we’re excited to keep a conversation on this topic, going with an attorney and law firm partner who has been very active and vocal in his call for increased opportunities and career growth for lawyers of color in law firms. We are very happy to welcome Don Prophete, partner of ` to Today’s Workplace. At this point, normally, we present the bio of our guests at this point, but since Dawn has such an interesting story, we’d like for you Don, to tell us a little bit about your journey.
Don: Well, thank you. I’m thrilled to be on your podcast and I appreciate the invitation. My journey is probably not as interesting as you’ve made it out to be, but I’ll give you the quick reader’s digest version started a big firm on the East coast, out of law school, and then I ended up, after about five years in the firm, going in-house would sprint corporation, which moved me from the East Coast to the Midwest and then I spent quite a bit of time there. All the way, I think, eight or nine years in that position and then I emerged and decided I wanted to take some of the things I had learned being, first the provider services, and then a consumer services, although still providing services internally. I wanted to use some of the things I had learned back in the private sector of law firms. And so, I went back to the law firm, big Midwestern from here, where I headed up their labor and employment practice. And then from there on, I started figuring out what the marketplace was going to look like and the consolidation of firms was starting around that time. That’s when big firms were merging and small firms were expanding and you start having firms opening offices all over the place, rather than just being regional and having been in-house, I had seen this thing growing and that was the future. So, I ultimately opened the Kansas City office of a big firm. And then I’ve been doing that opening offices for a long time, probably over the last 18 years or so.
Belinda: That’s great. So you landed in Kansas City?
Don: I did.
Belinda: Final stop?
Don: I did. I landed in Kansas City, got married in Kansas City at the time, and then had two kids in Kansas City. So, I still maintain a heavy presence here, but split my time between Kansas City and New York at the present.
Belinda: Yeah. So along the way though Don, one of the things that really attracted you to us about having this conversation is that you have given very impressive leadership in some of your writings about the need to support lawyers of color in law firms. Can you tell us a little bit about your quote-unquote activism on that front?
Don: Yeah. And thank you for that. So, just a little bit of a predicate to my answer is that, as you get older, you start remembering what your folks told you, right? You then understand what the hell they were talking about back then, but it all makes sense now. And so, I had a mentor early on said the first part of your career, you learn. The second third of your career, you put into effect what you learn. And the third part of your career is your legacy development. So, much to my dismay, closer to the last part of my career, then to the first part of my career. So one of the things I wanted to do and, I’ve been blessed to be in a great profession in many ways. And the profession has allowed me to lead a comfortable life and put my kids through good life, sometimes too good. But certainly, I wanted to do something that was more legacy-driven, than solely well, Prophete was able to do well for himself and he did well financially. And that’s my two stone, right? And one of the things I’m passionate about and that I’ve always been passionate about is the, it’s not only the inclusivity of racially diverse lawyers in the profession but also ownership. The ownership ability of racially diverse lawyers in the profession. Both have been, as you all know, the two of you have been tremendously successful in your careers. And so, I’m not telling you anything you don’t know, but both have been elusive for people of color. My goal is to hire as many wonderfully talented people of color as I can in our firm to give them the same opportunities that majority lawyers get in big firms. To also create the transfer of both business knowledge, mentorship, and power, through time and through creating a ecosystem that allows us the same opportunities to succeed and fail that the majority lawyers seem to get as a birthright.
Belinda: That’s great. Thank you for sharing that.
Barbara: Welcome to Today’s Workplace and it’s wonderful to have you here. One slight addition to your introduction is, I think we referred to this Dan G Brooks, and I think there’s another part of that name. So, would you tell us the name of your firm and what’s your role?
Don: So, firms are typically referred to by their first two names, but the entire firm name is, Constangy Brooks, Smith, and profit.
Belinda: Well that was a-
Belinda: That was a serious fail on my part. Forget me Don
Don: Not at all, not at all. No worries about that.
Barbara: Now, I remember having a conversation with Don around the time that he joined the firm and a very conscious decision that he made to become a main partner in a majority firm and the advantages, then he thought that that would bring [inaudible 08:23] so congratulations.
Don: Well, thank you. What you failed to say is that, that was a conversation where I was begging you to open our DC office.
Barbara: That’s true. That’s true. That is very true. That is very true. An October 2019 survey of 238 large law firms by the minority corporate counsel association and [inaudible 08:49] found that black lawyers made up 4.83% of associates, and only 1.94% of equity partners. White lawyers made up 73.38% of associates and 89.87% of equity partners. Don what have you found to be the root cause of such low representation of black lawyers and law firms?
Don: I’ve had a chance to both experience it and to study the cause and effect of these issues, while not scientific, this is based on personal experience. And so, there are a number of factors that basically create these disparities. There is the factor of traditionally, the legal profession was a, and remains so in many respect, was a very elitist pile power center and it was not a welcoming place for people of color. In fact, if you look at probably the various business sectors in the country, you’ll find that there are two centers of power and finances that are still closed to people of color. And that’s the law and banking, and by banking, I mean financial institutions and all that, that’s where we still- and the correlation is that those are also the principle power places of the US, right? banking and law. You make the laws and banking is where the money is, and that’s where we’re not. So, because I am a very suspicious person, I will say that there’s a correlation between the two. So that’s one, I think there’s been implicit and explicit racism once we’ve entered the profession. There have been studies made on this. There have been also the white papers where a certain memo was drafted, what a white science-sounding name. And then when it was repurposed with a black-sounding name that all of a sudden the paper failed, right. But it was a great paper when it had a white-sounding name. So it’s clear that there were issues there. Also, there’s been a lack of interest overall in the legal profession to diversify in a serious way, and a lot of people would say that, look firms talk about a lot and they post that stuff on the internet but near activity does not create real interest. So the fact that they say that they’re interested in resolving this issue and yet have not found any serious manner of doing so, and the numbers are very similar, with respect to representation too, when I started practicing in 1992. So, I have to be incredulous of the true desire to address the situation. And then lastly, I just think that our people go in, people of color go in, they’re disenfranchised, they get disenchanted. And then they’re very smart people, and then they go do other things that doesn’t require such a taxing environment and an intellectually debasing environment and so they leave.
Belinda: So last summer as Americans in cities across the world, were demanding racial equality, a lot of organizations, including legal organizations, started calling on the industry to make changes. You talked about the fact that some of them have always talked about the need for change, but haven’t really done anything. And so I’d like you to tell us as a legal industry veteran, and insider, can you share any observations you made of how law firms and even the corporate legal departments at law firms service, how did they respond once they heard all these calls for demanding change? And can you detect any positive impact at this point that those changes have had on opportunities for lawyers of color?
Don: Here’s the thing that happens directly, and I’ve been through various cycles of this. Is, there something a board that happens in the community and it just reinforces that there are very clear and critical problems with racial inclusiveness and the way that people of color are treated by society. And then there’s this peak. We go into a peak, everybody gets excited. And for three months, six months a year, then there’s this newfound wokeness, but it never gets you anywhere because I feel like it’s more an addressing at the situation at the time, rather than addressing the problem that is caught, right? So you try to tempt down the issue rather than going to the root cause of the issue and addressing the problem. So, the answer to your question is, have there been some positive things that have come up? The positivity comes up from the fact that we’re communicating more, that we continue to communicate more about these issues that are very real in the workplace and in the legal profession for people of color. The negativity is the what I consider the easy co-opting of remedies or issues towards these problems, right? So, I remember even at my firm, the biggest thing people could come up with at first glance was, well, let’s recognize a holiday. Well, that’s great. A black holidays, good. I’m never gonna go against that, but that’s really not addressing the root of the problem, but so very facil way of addressing that tense to demonstrate that you care, but that is a reality, do anything and move the needle. So that’s always my concern
Belinda: So, did you see anything different happened? Did you see anything different come out of the conversations and commitments from last year?
Don: No, not in the legal profession. What I did see is a heightened level of intensity from young people of color that I had never seen before, as a result of all the things that have been going on. And I was proud to see even my kids who are young adults, I have a 21 year old, soon to be 21 year old son, an 18 year old daughter and they were extremely involved in the movement. The Black Lives Matters movement. So I thought that there was a real opportunity for maybe this next generation to do more than certainly my generation has done. And maybe with more success, but law firms, again, what I’ve seen from law firms, the same regurgitation of the same letters that they have before, stating we understand that there’s an under-representation. We understand that there’s problems, so we’ll get signatories from law firms and corporations, committing to address this problem with no true leadership on the commitment. No true metrics on the commitment, no true ability to see what anyone is doing with respect to improvement. So really it’s, we were just recycling failed methodologies.
Barbara: Really interesting point Don, about recycling failed methodologies. My observation has been, that as companies have kind of tried to address the post-George Floyd murder realities, that they’re doing the same things that they’ve always done, and we know that those things don’t work. So, from your vantage point, from your experience, both in terms of having practiced law in a variety of different venues, what should law firms be doing? So first, what should law firms be doing? And then, let’s talk about what should corporations be doing? What are the concrete steps that leadership of law firms should take at this point, if they really want to turn this moment into a movement.
Don: So good questions. Think about it this way, and this is the most- I’m a simple-minded guy. So, this is a very simple way for me to understand the reality of the situation. We, as people of color have asked the people who engage in the bad conduct and who get the benefits of the bad conduct to self-regulate, that’s never going to happen. Law firms will not self-regulate, okay. The system is too beneficial to the stakeholders. So, the only real power to change our corporation is the people who drive the dollars. Is your in-house counsel. They’re the only ones who can force regulations on Law firms. Law firms will do whatever they can to appear as if they are accommodating to the issues, that they’re serious about, but ultimately a pie remains on one level. One group has all the right but not the majority lawyers. So, what needs to happen is that, corporations need to be determined and we need to push corporations to spend their dollars and to direct their dollars in a very effective and surgical way. There are a lot of law firms out there, right? And my research showed there were at least, in the top two 50 law firms, over $40 billion of revenues generated in those firms. So, this is not the whole profession. This is just a segment, a very small segment, really, of the population. Those dollars are directed to the same people. They’re directed in the same manner, as systemically, in no different way to urge change. So, if you want real change, you have to create new ecosystems. You can’t regurgitate the same thing and think you’re going to get a different result. And the ecosystem is, we have to empower people of color to be able to create internal ecosystems that will sprout. And the only way they do that is with power, right? And power only comes with business, and business only comes with dollars directed by corporations to people of color. People of color, as a general proposition, don’t own the business. They work with the overseers of the business. So it’s time for having portable business, is the answer to a lot of these issues.
Belinda: So Barbara asked you about the law firms and what they’re doing, the lawyers. And so, the lawyers within and lawyers seeking to grow in the profession, particularly in corporate law areas, I’m wondering, are there any new recommendations for what they can do to grow their portable bank of business? Is there anything that they can take advantage of, given the posture of corporations in wanting to respond to racial reconciliation? Do you see any?
Don: Great question. So this is where I take to task everybody equally. People of color in corporations need to stop and think about how they’re directing their dollars. We are not directing our dollars to other people of color. We are complicit in perpetuating a system that’s been this discriminatory and that’s been as a general proposition continuing to disadvantage people of color, because we have people of color in house who do not view it as one of their primary responsibilities to ensure that there is a commercial flow between very talented lawyers of color and the corporation. So they go in and they just continue the system. So, that’s general counsel of color, you’re on the hot seat. Decision-makers of color, you’re on the hot seat. If we cannot do that for ourselves, then the ask of people, majority people is foolish.
Barbara: Yeah. You talked about what corporations can do, but let’s go back to the law firm law firms for a moment. What can leadership of law firms do to ensure a positive experience for associates of color? We’ve talked about business, we’ve talked about portable business, and that’s obviously very, very important in the law firm power structure. But what about associates? What would make their experience, recognizing that, from my observation, so often, is awful? It’s an awful, awful experience. Being an associate of color in a majority law firm. That’s just a reality. So, what can be done to reduce the barriers, to make folks feel more included, greater sense of belonging? What are some of the strategies that would work?
Don: You’re asking a great question, but I don’t believe that the solution is from the bottom up. It’s a solution from the top down. The associates have no power, right? They go into the system as is, and they are recycled, and this is exactly what happens. We have corporation X as well. Why don’t you have some lawyers of color? And then they recycle us, right? They don’t develop us and then they, just as long as they have any person of color, they are good. So we’d go to this turnstile process that creates problem, and that creates no type of bond to the firm and no type of allegiance, love development, mentorship, none of that, right? Which is different than what many majority young lawyers get. So when I look at the question, is what can they do more? I don’t know that there’s anything you can do. If you’re required to run a race from the start and somebody runs the race from the 50 yard, and it’s got to go to the hundred-yard. I going to try run twice as fast. I mean, nobody could do that, right? You can only do what you can do. The firms have to diversify their leadership. The firms have to start looking like the rest of America to understand what’s necessary to go out, recruit and create favorable environments in the workplace. Other places do that. Other businesses do that. Why can’t law firms? I think we give law firms and the financial industry, this false pass. It’s a false narrative that there’s something more special about a law firm that creates this invisible wall that’s very difficult and know only the very best can make it. Yeah, people are very smart at law firms, but the best companies in the world figure out how to diversify and create inclusiveness, not perfectly, but much better than law firms. If law firms would simply able to meet that standard, the improvement wouldn’t be dramatic. Even the military is doing great with diversity.
Belinda: Right? Yes. So one of the things I think that law firms latched onto in terms of diversifying is this notion of something called the Mansfield rule, which was a program created by diversity labs and provides metrics for legal organizations to increase their diversity. And so, in order to be a Mansfield rule certified, law firms must consider a pool that’s made up of at least 30% women, attorney of colors, LGBTQ plus, and lawyers with disabilities for leadership and governance roles, equity partner promotions, and formal client pitch opportunities and also senior lateral positions. So, I was wondering, are you familiar with the rule? And can you describe any ways in which you’ve seen it used with success?
Don: I am familiar with the rule, so I’ve represented professional sports teams and leagues in the past and still now, and there was an equivalent of the Nashville, or at least something very similar, it’s called the Rooney rule, right? And the Rooney rule was an abject failure, right? And the Rooney rule was the same thing. In order to diversify front office positions and head shank positions that any time one would open, you would have to have at least a person of color be part of the interviewing process. The numbers have not ticked up at all; as been well over a decade. So, rules are nice, right? If you apply them legitimately, right? So these rules, so we can get invited to the dance, but if nobody asks you to dance you’re still standing on the wall, right? That’s the ultimate deal about this. It’s no longer simply coming up with what I called these defacto triggers to make people happy in the moment. Is to create accountability, to make, firms show you how they’re implementing these rules to make firms show you how they’ve diversified their roles with very talented people. That’s how that works. The mere fact that this rule exists. I frankly, I haven’t seen any uptick in any positivity as a result of the Mansfield rlue. So I don’t know, maybe I’ve missed it.
Belinda: Well, that’s disappointing that there’s no visible, at least to the naked eye, impact of it yet. But unfortunately, not surprising given the history of other attempts that have been done over and over and over again for years, but still haven’t changed things.
Barbara: One of our earlier guests, they talked about diversity, equity, and inclusion coaching, if you will, focusing on millennials, especially given the large number of millennials in the workplace now. What are you saying in terms of the differences with respect to how millennials are experiencing and perceiving issues as compared to folks who enter the profession at a time when you did?
Don: Yeah. So the millennials have no patience for foolishness, which scares me for the profession, right? Because when we came in, we were all in, right? When we came in, if you switch firms twice within your first 10 years, you were persona non grata with any firm and that meant that you were just discarded, right? Not millennial, they could switch firms every 18 months and it’s not an issue, right? So, no capital in the firm, no personal capital in the firm, and millennials are also the smartest and most of the tune globally of any generation we’ve ever had and they believe that they can do things differently. They believe that they don’t need to sit in a locker. They don’t have to take it. We felt we had to take it. I must say you were going to be lawyers, we had to take it and that was the deal, right? We were either a doctor, a lawyer and that’s it, right? They don’t have those same constraints and that scares me because that means to me that if we don’t make changes, that we will lose any real numbers in law firms as people of color. In fact, I hire a lot of lawyers in our firm and we look for lawyers, getting a black male lawyer is very difficult, right now in a large firm, the paucity of black males is alarming and it’s going under the radar. And we have-
Belinda: What’s the role. What’s the cause of that? Why is that?
Don: I don’t know. I don’t know whether it’s fear of the black male, we’re not hiring black males in big firms. Whether black males feel even more disenfranchised in law firms and go do other things. I don’t know what the answer is, but I do know this, the number is at alarmingly low rates. And if we don’t wake up, we will not have black males in big firms and in the profession moving forward, and that cannot happen. This goes against everything we’ve done, right. And the folks before us who had it even worse, right? So we can’t have that happen.
Barbara: So, what do you think it’s going to take done to achieve true transformation that will result in more black, other attorneys of color, to become a larger force in the legal industry? I mean, we’ve talked about the window dressing. I mean, checking the box, holidays, that’s not going to do it. What will?
Don: Well, I think we have to be serious about engineering, a process that makes sense of not regurgitating the same letters, the same window dressing, and it’s going to be a multilayer process. One, corporations first and foremost need to say look there, 30% of my revenue, I want to go to black originators or Latino originators, or Asian originators so that they can create relationships, and most importantly, capital empowered to start mushrooms and growing ecosystems in their fund; one. Second law firms have to totally diversify leadership, and I’ve been on executive committees on several firms and it’s dismal, right? Even women. I mean, just women. We make more than 50% of the profession. It’s hard to have women on the executive committees and boards that can no longer be acceptable in 21st-century legal profession. Third, we have to hold lawyers of color, responsible for developing other lawyers of color and, and putting them on their files. Right now, we don’t do that. The lawyers of color feel like they’re constrained, but we need to push them to create the ecosystem. And just like we would push the law firms, you got to show me. If I’m sending you this business as the corporation, show me how you’re developing the community. If you can’t show me that you’re developing the community, it’s the same. You’re just profiting personally from it then I can go to somebody else. I could stay with the majority guy to get the same result, right? Then we have to go back to the law schools and law schools help them re-engineer their recruiting process for people of color. The numbers are down drastically. The bottom of the bar, taking rates for people of color are down drastically. So we have a pipeline problem that is emerging. And before too long, we’re going to have dry, right? The pipeline could be dry. And then at the firm, we have to create a more embracing environment for people of color and continuing to grow a system that’s respectful, that’s governed properly, and that takes into consideration everything, not just color.
Belinda: That’s some great, great advice, Don and at this point in our conversation, we typically ask for a last word and since you’ve already given us that great last word with respect to the law firms and the corporate law departments on several different levels, what would be three pieces of sound advice you would give to lawyers of color who were poised and ready to take their careers to the next level?
Don: Yeah. Piece one is, the thing that’s always disappointing, I think, is that we, people of color, are not intellectually curious about one another. We don’t know each other. We don’t know who’s in our community. We don’t have the connection. We’re kind of ships passing in the night. We have to stop that. We have to all know each other, benefit from each other’s lessons. There’s more like, I like to say, there’s more than one Rolex for everybody, right? Last I checked Mr. Rolex didn’t make just one room. Everybody can get a Rolex. You’re not competing with your own people, in fact, we’re so behind we can’t compete, it’s ridiculous to compete with ourselves. It’s competing with yourself. So we have to develop a community of relationships that helps us get through this. Second, I think, and I hate to say this because I don’t want it to seem as if I’m rendering any segment of the legal professional unimportant, but I think it’s important for lawyers of color to develop their own business. You could be a subject matter expert and have a great career. You could be a non-equity partner and not a lot of business and have a great career, be very– that’s excellent. But I think ultimately you need your business portability. You need the ability to make changes and to go someplace else and to expand what you can do and your power base comes from your ability to have business. So, the last one I’ll say is, the in-house people of color, stop being scared of hiring your people.
Belinda: Say that again for the people in the back.
Don: Stop being scared of hiring your people.
Belinda: Amen. Got it.
Barbara: Well, Don we’d really like to thank you for providing us with so much valuable information and insight into issues related to representation and participation of lawyers of color in today’s workplace and inside law firms. So thank you so much for being our guest today.
Don: It’s my pleasure. Thank you for the invitation
Belinda: Yeah. Thank you, Don. Thanks a lot.
Don: Hopefully it came out well, thank you, ladies. I appreciate that.