While the UK has made considerable strides over the past decade in protecting the rights of lesbian, gay and bisexual lawyers, many still encounter discrimination in the workplace.
Thirteen years ago Ashley Crossley was a pupil at a prominent London set. The gay tax lawyer’s career got off to a less than promising start, given he was subject to homophobic taunts from one of the senior clerks, who allegedly used to exclaim “backs to the walls” when Crossley entered the room.
Having reached his limit with this harassment, Crossley spoke with a member of chambers, who said he’d “have a word” with the clerk in question. Thirty minutes after that discussion, the senior clerk appeared before Crossley and reportedly told him he’d never work in chambers ever again.
That kind of behaviour at least helps to focus the mind. Certain that this wasn’t the kind of environment in which he wanted to forge a career, Crossley retrained as a solicitor at Clifford Chance and – following a stint in politics – is now a partner at Baker & McKenzie, where he is chair of the Europe and Middle East wealth management team. He also helps run BakerLGBT – the firm’s lesbian, gay, bisexual and transgender network.
His achievements in such a short period of time are partly reflective of the massive legislative and cultural transformation in the field of LGBT rights that has occurred in the UK over the past decade. Nevertheless, Crossley warns against complacency.
“Just because it’s relatively good now, don’t assume it always has been, or always will be,” he says.
According to a recent study completed by the Law Society – in conjunction with the LGBT network InterLaw and LGB charity Stonewall – Crossley’s caution is well-founded. The research found that 17 per cent of lesbian, gay and bisexual lawyers have had direct experience of homophobic abuse.
Co-chair of InterLaw Simmons & Simmons partner Daniel Winterfeldt believes the real number of people affected by such harassment could in fact be much greater.
“It has a knock-on effect because the 17 per cent are networked into a community and they tell them about their experiences, impacting upon ther people’s perceptions of homophobia,” he argues.
Direct and indirect homophobia also has an impact on the willingness of LGB lawyers to be out in their respective workplaces. The same survey also found that while 96 per cent of gay men and 92 per cent of lesbians are ’out’ in their personal life, only nine per cent of gay lawyers and 27 per cent of lesbian lawyers are fully ’out’ in the workplace.
These proportions vary according to age and also to the type of culture of the firm or in-house legal team in question. Younger lawyers are more likely to be or have been ’out’ at their training firm than their older colleagues were when they first entered the law 20 or 30 years ago. Sixty per cent of lawyers under the age of 25, for example, felt able to come out at their first firm, while only 15 per cent of 51 to 55 year olds felt able to on starting their careers.
The disparity between attitudes in personal and professional lives is partly accounted for by lesbian and gay lawyers fearing their colleagues could make their lives unpleasant if they become aware of their sexuality. One respondent said “the legal profession is incredibly homophobic” and that they would “never dream of coming out” at their present firm. Some of this homophobia translates into discrimination claims being brought against employers and partnerships, although many are deterred because, as Russell Jones & Walker employment partner Arpita Dutt puts it, “If it’s career suicide to come out, then it’s a death knell to bring a claim.”
But an important factor for the lack of openness in the workplace is the concern that gay and lesbian lawyers have about how being out might affect their career advancement. As one gay male lawyer comments: “I’ve been repeatedly passed over for promotion and, despite turning in better than average performances, have always felt that others thought I was somehow untrustworthy.”
In fact, about 55 per cent of gay men and 74 per cent of lesbians believe their sexuality would affect their career progression. Hindrances to career advancement on the grounds of sexual orientation is referred to as the ’pink plateau’ – an LGBT version of the glass ceiling.
David Shields, director of the workplace programme at Stonewall, says this can be expressed in two ways: an under-representation of LGB people at a senior level, and by the fact that “LGB careers often plateau at a certain level, or are restricted to certain functions”, such as focusing on non-client-facing roles.
Shields, who is responsible for the annual Workplace Equality Index, which this year featured four law firms in the top 100, says gay and lesbian lawyers often feel they are not judged by the same criteria as their straight colleagues and that they need to work harder to prove themselves.
“In the legal profession people often put their energies into being technically brilliant, but that’s not enough – you also need to be a good networker,” says Shields.
Some gay and lesbian lawyers may feel that traditional old-boy networks are unavailable to them, or self-exclude themselves from work crucial to business development because it will involve the tedious task of having to repeatedly out themselves when faced with the, often quite innocent, questions about the ’wife or husband’ or ’what you did at the weekend’. This is crucial given the common assertion – held by many older lawyers – that sexuality is a ’private matter’. Colleagues and clients can tend to feel that a lawyer has something to hide if they don’t wish to disclose anything about their personal life.
Nevertheless, Shields argues that LGB lawyers aren’t always faced with a false choice between being closeted and successful or out and consigned to career stagnation.
“[LGB lawyers] may not have the old-boy networks, but they do have access to [other] high-value networks,” he says. These include, for example, organisations such as InterLaw and LAGLA (the Lesbian and Gay Lawyers Association), which bring together sexual minority lawyers and their clients. Shields also makes the case that being both LGB and a leader brings a “unique value proposition” to a lawyer’s work and that “the act of being out is a demonstration of authenticity”, which can inspire respect in colleagues.
“If you’ve had the experience of being different from society, you’ve had to work harder to develop your own values, and bringing those values into your leadership can [help you] develop a unique proposition.”
Better out than in
One lesbian respondent to the survey echoes this sentiment: “I’ve been consistently ’out’ as a lawyer, during my training contract and as a qualified lawyer. I believe that my honesty and directness in this area of my life is reflected in the way I work, build teams and supervise people.”
In addition, the willingness of senior lawyers to be out at work helps them act as role models for their more junior LGB colleagues, inspiring them to continue to develop their careers at their current firm or organisation. Intra-firm networks can assist in that process, through facilitating contact between people who wouldn’t otherwise meet. But these aren’t necessarily good per se.
“In order to be effective, networks need good leadership,” says Winterfeldt. “That’s very hard if people are busy. It’s important for people to step forward and accept responsibility for their own networks.”
Smaller firms may also lack the critical mass necessary to get a network going, in which case there’s a case to be made for joining together qualified lawyers with support staff or several firms.
With employment equality regulations becoming law on 1 December 2003, it became illegal to discriminate against lesbians, gay men and bisexuals in the workplace.
ince then the employment tribunals have seen a growing number of sexual orientation claims. These rose from 470 in 2006-07 to 710 in 2009-2010. Of those claims only 74 went to a final hearing and 27 were successful. This success rate is broadly similar to that for race, sex and disability discrimination claims. As in all these instances, the relatively low success rate reflects that discrimination is often difficult to prove.
However, a much larger number settle out of court under compromise agreements and those who lose at the Employment Tribunal often succeed at the Court of Appeal. In addition the passage of claims before the tribunals has resulted in an “educative process” among the judges, believes Dutt.
The fact that there is no cap on damages for sexual orientation claims means that firms are increasingly implementing measures, such as LGBT-specific diversity training, designed to minimise the damage associated with potential claims. In 2008-09 the highest award made was £63,000.
But firms also risk being at a commercial disadvantage if homophobic attitudes drive away talented LGB staff or prevent them from joining in the first place. And in this current difficult trading environment, can any employer afford to do that?
The LGB Solicitors Survey 2009/10 was an online questionnaire developed by volunteers from the InterLaw Diversity Forum. A total of 443 lawyers responded, including 298 gay men, 100 lesbians, 37 bisexuals and eight who did not disclose their sexuality. The full results will be published in the autumn. The Law Society and InterLaw will work with firms to develop plans of action on the basis of the findings.