The House of Delegates passed two resolutions that focus on returning to the workplace amid the COVID-19 pandemic at the 2021 ABA Hybrid Annual Meeting on Monday.
Resolution 602 calls on bar associations, specialty bar associations and legal employers that are creating and instituting policies on the safe return to the workplace to also address the pandemic’s disproportionate impact in the legal profession on specific groups, such as people of color, women, caregivers, seniors and individuals with disabilities or who identify as LGBTQ+.
The Coordinating Group on Practice Forward and the Commission on Racial and Ethnic Diversity in the Profession, co-sponsors of the resolution, point out in their report that recent nationwide ABA studies highlight how the pandemic increased obstacles already faced by these groups.
“While some firms and corporations have implemented a host of meaningful diversity, equity and inclusion strategies, these strategies do not address systemic barriers, nor do they adequately address this disproportionate impact,” said Laura Farber, co-chair of the Coordinating Group on Practice Forward, who introduced the resolution. “And frankly, we’ve had two pandemics, COVID-19 and the racial and social justice pandemic, which has brought these issues to the forefront although they have existed for quite some time.”
Practicing Law in the Pandemic and Moving Forward: Results and Best Practices from a Nationwide Survey of the Legal Profession, published in April by the Coordinating Group on Practice Forward, is based on input from more than 4,200 members who responded to questions about how COVID-19 affects them and their practices.
Among its results, the survey showed that the transition to remote work disproportionately impacted female lawyers with children and lawyers of color. In particular, women were more likely to report increased disruptions to work due to personal obligations and feeling overwhelmed by their responsibilities.
As a result of increased stress, the report showed that 53% of women with children age 5 or younger and 41% of women with children ages 6 to 13 have considered part-time work. Women also reported worrying more often about advancement, while women with children reported feeling more often that they were overlooked for assignments or opportunities.
An earlier study, Walking Out the Door: The Facts, Figures and Future of Experienced Lawyers in Private Practice, also found that women in BigLaw were far more likely than their male counterparts to say they were denied business development opportunities, refused or overlooked for promotions and perceived as less committed to their careers.
According to its results, which were published by the ABA and ALM Intelligence in 2019, female lawyers reported they were largely responsible for arranging for child care, leaving work for their children and managing their children’s extracurricular activities. For example, 54% of women said arranging child care was their full responsibility, compared to 1% of men.
The report accompanying Resolution 602 also highlights Diversity and Inclusion in the American Legal Profession: First Phase Findings from a National Study of Lawyers with Disabilities and Lawyers Who Identify as LGBTQ+, a study published by the ABA and Syracuse University’s Burton Blatt Institute in 2020.
It found that about 40% of lawyers who identify as having disabilities and/or as LGBTQ+ reported experiencing discrimination, harassment or bias in the workplace. Of these lawyers, nearly 22% said they experienced subtle and intentional biases, while nearly 39% said they perceived or experienced subtle but unintentional biases.
The Coordinating Group on Practice Forward and the Commission on Racial and Ethnic Diversity in the Profession encourage legal employers and bar associations to use this data to help develop and implement stronger diversity, equity and inclusion strategies and policies.
“The Practice Forward report acknowledges that there are no one-size-fits-all policies to address these critical issues of diversity, equity and inclusion in the workplace,” said Evan Parness, a member of the Commission on Racial and Ethnic Diversity in the Profession, who also spoke in favor of the resolution. “However, as the report and survey demonstrate, there are a number of universal steps legal employers can take to develop policies that address the disproportionate impact of the pandemic.”
Parness pointed to several examples listed in the report, including:
• Communicate with lawyers and staff through town hall meetings, surveys and other regular check-ins to better understand their concerns.
• Hire and support a diversity professional and/or form a diversity committee to elicit input from women, lawyers of color, lawyers who identify as LGBTQ+ and lawyers with disabilities when developing policies related to the recruitment, retention and promotion of individuals in underrepresented groups.
• Create return-to-work policies that acknowledge the burdens the COVID-19 pandemic has placed on people of color, women, seniors, caregivers and people with disabilities, including allowing lawyers and staff with child care or elder care responsibilities and lawyers and staff with health concerns to continue working from home.
“The ABA needs to lead in this space,” Farber added. “We need to demonstrate that our legal profession should always, always focus on recruitment and retention so we can reflect, and our places of employment can reflect, the beautiful diversity of our communities, of our society and of this country.”
The Coordinating Group on Practice Forward and Law Practice Division co-sponsored a second measure that encourages bar associations and legal employers to create and distribute resources that can help guide policies and best practices for the safe and effective return to the workplace.
In introducing Resolution 603, Roula Allouch, a member of the Coordinating Group on Practice Forward, called it “simple and direct” and said it had broad support from a number of ABA entities, including the Board of Governors. She also noted that it builds on the work of the 2020 Practicing Law in the Pandemic and Moving Forward survey, which said legal professionals want more information about how to transition back to the office.
“We know there is no one answer that is applicable to every area of the country and every employment setting, but what is essential is that bar associations lead the practical guidance on safety, hybrid and remote work issues as offices reopen as well as on issues of diversity, equity, inclusion, wellness and child care in light of the major concerns in these areas referenced in our member survey responses,” Allouch said.
The Coordinating Group on Practice Forward and the Law Practice Division note in the report accompanying the resolution that legal employers can benefit from several resources as they put their plans together.
In addition to addressing issues raised by the Society for Human Resource Management, such as stay-at-home protocols and vaccination policies, they recommend that legal employers take into account a few general considerations. This includes the need to develop policies that acknowledge the impact of child care obligations on their attorneys and staff and provide information to assist them in their roles as caregivers.
The Coordinating Group on Practice Forward and the Law Practice Division provide other resources in their report, including the Centers for Disease Control and Prevention’s Resuming Business Toolkit and the U.S. Chamber of Commerce’s guidelines on implementing a national plan to return to the workplace.
The Coordinating Group on Practice Forward submitted two other resolutions that the House of Delegates overwhelmingly approved at the ABA Midyear Meeting in February.
Resolution 300A encourages courts, bar associations, legal employers and law schools to develop and make accessible resources, such as educational programming or employee assistance programs, to advance well-being in the legal profession.
The second measure, Resolution 300B, urges Congress and state, local, territorial and tribal legislatures to pass legislation and provide adequate funding to ensure access to “fair, affordable and high-quality child care and family care.” It was co-sponsored by the Commission on Women in the Profession.