U.S. Attorney for the Southern District Preet Bharara. (Photo: Rick Kopstein/ALM)
At a summer cocktail party for minority law students at the Yale Club in New York, a young black woman posed this question to Preet Bharara, the high-profile former U.S. Attorney for the Southern
District of New York: What can minorities do to overcome discrimination in the legal profession?
“The best way to overcome anything is to work really, really hard,” Bharara responded. “You can overcome prejudice by sheer excellence of work.”
Like other attendees at that event, I thought it was a perfectly sensible answer. In a profession where putting in ungodly hours is a badge of honor, working hard is the sine qua non for success.Still, where has sheer hard work gotten minorities and women, particularly in Big Law? “It’s pretty obvious that people who work hard don’t necessarily rise to the top; it’s never sheer intelligence,” says Michele Coleman Mayes, general counsel for the New York Public Library and former GC for Allstate Corp. and Pitney Bowes Inc. “When you do the numbers of who’s in power, they are all white dudes!”
If that’s the reality, why do we minorities keep preaching hard work to each other as the solution?
First, hard work is always the easy default advice for underdogs. (Is there a choice?) Second, we want to believe that the legal profession is fundamentally a merit system. On one level, Bharara’s message is empowering: Anyone—no matter what race, ethnicity or social/economic status—can grab the brass ring through relentless effort.
But that message is also misleading. “I agree that minority lawyers must be excellent at all things, particularly in Big Law,” says Shearman & Sterling partner Paula Anderson. “That said, harping on being excellent is a disservice because it suggests a meritocracy.”
Another female lawyer offers a sharper reaction: “It wasn’t harmful but naive. Maybe that because Preet is male—he assumes his work will always get noticed.”
For all minorities, the Work Hard message distracts from what they really need: Self-promotion and allies. “Focusing solely on lawyering is actually a mistake a lot of lawyers make … especially when they’re first-generation professionals,” says Ari Joseph, director of diversity at Brown Rudnick. “They put their heads down and bill, bill, bill.”
In fact, the work-till-you-drop ethos can backfire, particularly for Asian-Americans. “Working hard isn’t always sufficient for promotion or advancement because of lingering stereotypes,” says Goodwin Liu, associate justice of the California Supreme Court. Asian-Americans, he explains, are often perceived as “being foreign, socially awkward or unassimilable.”
Citing her own career, Mayes says: “I’m rarely the natural choice for a top position. No one picked me because just because I’m African-American.” What propelled her was an ally, Sara Moss, Pitney’s former GC, who pushed for Mayes as her successor. “Sara was interrupting bias,” Mayes says.
Minority lawyers must be their own advocate. “If you’re not getting plum assignments or being left out of client events, call it out,” says Anderson.Bharara wouldn’t disagree. In response to my request for comment, his assistant said that he “believes that there was more to his response, including that people need to speak up, call out discrimination and create mentorship relationships in working environments.”
So is the Work Hard message obsolete? Hardly. “Working hard is the bare minimum,” says Joseph.But what happens if minorities work hard, play the game smartly yet still feel frustrated?
“Sometimes you can’t overcome bias,” says Mayes. “There are times when your ass needs to walk.”