Giorgio Bovenzi
Haynes Boone, New York
Giorgio.bovenzi@haynesboone.com

Claudia Bruscaglioni
LMCR, Milan
claudia.bruscaglioni@lmcr.it

Philippe Tardif
Borden Ladner Gervais, Toronto
PTardif@blg.com

Monique Mavignier
BMA, Sao Paulo
monique@bmalaw.com.br

Diversity session (37th International Financial Law Conference)

Report on the joint session of the Banking Law Committee and the Securities Law Committee at the 37th International Financial Law Conference in Venice

Thursday 12 May 2022

Session Co-Chairs

Giorgio Bovenzi Haynes Boone, New York

Claudia Bruscaglioni LMCR, Milan

Monique Mavignier BMA, São Paulo

Philippe Tardif Borden Ladner Gervais, Toronto

Speakers

Valentina Dolciotti DiverCity Magazine, Bergamo

Fabio Moretti Castaldi and Partners, Milan

The session was opened by Claudia Bruscaglioni, who introduced the two guest speakers, Fabio Moretti and Valentina Dolciotti, as well as the International Bar Association (IBA) officers participating in the session.

Bruscaglioni started to discuss the importance of diversity and inclusion (D&I) issues with Moretti, a member of the Venice Bar with significant experience as in-house counsel of IBM Europe, the Middle East and Africa (EMEA) and previously, of major Italian fashion brands. At IBM, Moretti had the privilege of witnessing a leader and precursor to diversity policies, and the beneficial effects of diversity policies being introduced in the workplace.

The conversation went on with the second guest speaker, Dolciotti, a journalist and corporate adviser on D&I. Philippe Tardif asked Dolciotti what types of diversity she works with the most. Dolciotti explained that she sees a number of distinct elements of diversity: gender, sexual orientation and lesbian, gay, bisexual, transgender and intersex (LGBTI) community, physical and cognitive disabilities, generational issues and cultural-ethnic origins.

Tardif further enquired what issues Dolciotti sees as most relevant for the companies she advises. The journalist explained that, in Italy, one of the obstacles to achieve gender equality is machismo, which is still quite rooted in Italian society. Companies need to adopt measures to achieve D&I. Typical measures include updating policies, training programmes, communication training and equal representation in decision-making bodies. However, one should note that the perception of each element of diversity changes over time and also changes depending on the country, so the relevance that diversity assumes can change in a given historical context.

Tardif made the point that D&I are more than reputational issues, they are an operational imperative. One of the main drivers for companies to engage in D&I practices is the achievement of better results. In that respect, Dolciotti said that she has seen various examples of better results being achieved through D&I practices. In particular, on the basis of data issued by the global non-profit organisation Catalyst: (1) companies in the top quartile for gender diversity are 21 per cent more likely to outperform on profitability; (2) organisations with diverse leadership are 70 per cent more likely to capture a new market than companies lacking diverse leadership; (3) diverse teams tend to produce answers to questions that are 58 per cent more accurate than teams with zero diversity; (4) companies with diverse management are more likely to develop new and innovative products; and (5) companies in the top quartile for racial and ethnic diversity are 35 per cent more likely to have financial returns above their industry norms. 

Bruscaglioni then continued the conversation with Dolciotti, raising the point of ‘pink washing’ or ‘rainbow washing’, which, according to Dolciotti, is an issue to watch because some companies announce to the public the adoption of D&I policies at an early stage in the process, prior to having started real implementation of D&I policies at all levels. It could be the case that a company's middle management may be hostile or much slower in adopting D&I measures. Also, Dolciotti mentioned that, fortunately, customers, suppliers and stakeholders are increasingly attentive and aware of the choices of brands and therefore, not easily fooled by companies that are ‘all talk’ and little action.

Further, Bruscaglioni highlighted that it is important to assess what style of communication is being used to achieve equality and inclusion in terms of process in the workplace.

Some experts believe that to achieve full inclusion, more focus should be given to collaborative practices and communication techniques based on cooperation for the purpose of meeting the interests of all parties involved. Often, in the workplace and society, we find a competitive behavioural style that does not help inclusion. In fact, women – and in general minorities – are frequently afraid to speak up in environments where differences are being addressed in an adversarial manner. 

Research carried out by Murray Edwards College, University of Cambridge, on gender equality in the workplace found that women feel their progress at work is more inhibited by inhospitable or hostile workplace cultures (38 per cent) rather than difficulties balancing work and family life (22 per cent). In this respect, Dolciotti said that every minority, that is, every group that does not belong to the historically dominant category (ie, white, male, heterosexual, able-bodied, wealthy and middle aged) may feel inhibited by the dominant group.

The goal of D&I practices should not be simply to translate one minority into the dominant group but to ensure that every person can freely and safely express itself.

Bruscaglioni mentioned that, to achieve gender parity, the Italian Government has passed some laws and recently introduced ‘gender parity certification’, which grants certain benefits to companies that comply with D&I policies, such as tax credits and a rating premium when they participate in public tenders.

Dolciotti expressed the view that these laws are useful because they act as a stimulus for a process that is necessary and beneficial for society, and would otherwise be slower. The Golfo-Mosca law, which requires a fair representation of the minority gender on the board of directors of listed companies, and the Cirinnà law, which guarantees the right of civil union to homosexual couples, have really helped Italy and companies to take a big step forward in innovation, civility and inclusion.

Giorgio Bovenzi reported on the United States experience in diversity, equity and inclusion, highlighting certain connotations that could be equally utilised and integrated within other jurisdictions.

Bovenzi started by reporting US statistics on women and people of colour who had started in the legal profession, noting that from 1993 until 2021, they had increased from 41 to 55 per cent and 19 to 41 per cent, respectively, and noted that data shows that the current lack of diversity at the equity partner or senior leadership levels is not due to a pipeline issue or to initial lack of interest in the legal profession by members of diversity groups. He then discussed the development of the American Bar Association (ABA)’s Diversity Survey. In 2015, the ABA created four working groups to assess D&I in the legal profession. Their work resulted in the adoption of ABA Resolution 113.

ABA Resolution 113, on the one hand, urges legal service providers to expand and create opportunities for diverse attorneys while, importantly, on the other hand, also urges the buyers of legal services to direct a greater percentage of legal spend towards diverse attorneys. The resolution’s goals are: (1) to increase diversity at all levels within the legal profession to make the legal field a more appealing profession for diverse individuals; (2) to increase the number of diverse attorneys and remediate issues of implicit bias in the legal profession; and (3) to encourage corporate clients to use a Model Diversity Survey in procuring and evaluating legal service providers. The adoption of the Model Diversity Survey was the critical step that broke new ground and has proved to be most effective in identifying and nipping in the bud diversity issues.

Bovenzi explained that the Model Diversity Survey has become an important standard for law firm reporting of diversity metrics. The survey offers transparency to corporate clients by allowing for the measurement of trends in law firm partnership ranks, hiring practices, attrition rates, lawyers working on flexible schedules and the ranks of the highest-compensated attorneys. It offers the benefits of data uniformity, time efficiency and trending year on year, not only on aggregate but also at the individual firm level. The survey is accessible by corporate clients and provides real-time access to any law firm’s diversity demographic data submitted in response to the Model Diversity Survey. By examining law firms’ surveys, clients can verify that they are using law firms that reflect the diversity of their employees, customers and other stakeholders. As such, the survey has become an important benchmarking tool that has the potential to create, and has indeed laid the foundation for, more trust in the legal profession’s ethical conduct and integrity in seeking equal opportunity for access, acceptance and advancement for all attorneys.

Bovenzi observed that the survey, and more generally, the ABA’s approach, could be replicated and implemented in most other jurisdictions where clients are frustrated by law firms’ slow reaction to their demands for increased diversity in the legal profession.

Bovenzi finally briefly outlined a parallel initiative, the Mansfield Rule, launched by Diversity Lab^[1] to measure whether legal departments have affirmatively considered women, LGBTI, lawyers with disabilities and racial/ethnic minority lawyers for legal top roles and outside counsel representation, and ultimately, to increase the representation of diverse lawyers in leadership. The ‘early adopter’ firms piloting the Mansfield Rule since its 2017 inception have reported an increase in the racial and ethnic diversity of their management committees by 30 times the rate of non-Mansfield Rule firms. The achievement of the Mansfield Rule parameters results in Mansfield Rule Certification, which also entitles certified firms to send their newly promoted underrepresented partners to Client Forums to meet and learn from hundreds of legal department leaders. The parameters have progressively become more exacting, and the most recent version of the rule, Mansfield Rule 5.0, adds the requirement that at least 30 per cent of attorneys that firms consider for chambers nominations are underrepresented attorneys and at least 30 per cent of individuals they consider for C-level and other senior-level professional staff are underrepresented individuals. Participation in the certification process has expanded from the US to Canada, and more recently, the United Kingdom, with more than 160 law firms from those countries currently participating in the 2021–22 certification process.^[2]

Monique Mavignier reported on the experience in diversity, equity and inclusion in Latin America, with a focus in the Brazilian legal market.

Mavignier highlighted that Latin American firms face different realities when it comes to discussing valuing race and gender equality, respect for sexual orientation, gender identity and all religions, as well as the inclusion of people with disabilities.

While the Brazilian legal community seems to have improved on gender equality, with law firms showing high percentages of women lawyers, including in leadership positions (around 50 per cent, in certain cases), and has also now turned its lens, with more focus, on the racial discussion, other countries are far behind in having women representatives, and racial diversity does not seem to be a reality, at least internally. However, in a globalised world, with law firms serving clients all over the world, while building a diverse and equitable workplace takes real investment and hard work, it is also true that diversity is good for a company’s/legal firm’s bottom line.^[3]

With clients leveraging their role – investment funds refusing to vote favourably for the election of non-diverse boards, and companies choosing law firms to represent them also based on their capabilities in putting together not only a competent but also diverse team – several initiatives have been adopted by the Brazilian legal market, or that affect the Brazilian legal market, that are worth noting.

An important independent initiative on gender diversity was taken by Women on Board (WOB),^[4] ‘whose purpose is to acknowledge, value and promote corporate environments in which women are part of the board of directors or at advisory councils, to showcase the benefits of such diversity both to the corporate world and to the community in general’. WOB certifies companies that have at least two effective women on the board of directors, and the purpose of certification is to acknowledge good practices in corporate environments, as well as to track the benefits that businesses enjoy, as a result of diversity in leadership positions.

Law firms, particularly, have been endorsing the ‘Women’s Empowerment Principles’, a collaboration between United Nations Women^[5] and the UN Global Compact initiative. Subtitled ‘Equality Means Business’, the principles are designed to help the business community to incorporate values and practices that promote gender equality and empowerment of women.

On the racial front, a group of prominent Brazilian law firms have engaged with each other to sponsor Projeto Incluir Direito^[6] and Aliança Jurídica pela Equidade Racial^[7], both aiming to contribute with educational and training opportunities for self-declared black students, and promote racial inclusion in the legal market.

As part of the LGBTI initiatives, law firms have supported the Fórum de Empresas e Direitos LGBTI+^[8] and adhered to the ten Business Commitments to Promoting LGBTI+ Rights, which intend to improve corporate practice related to sexual and gender diversity, while the difficulties affecting people with disabilities have been dealt with in partnerships with Best Buddies Brazil, which aims at including people with intellectual disabilities in the workforce.

Mavignier concluded by showing that these diverse, innovative workplaces are, however, not possible without an equitable hiring process, in a way that accounts and corrects for systemic inequalities. A noteworthy example quoted by Mavignier on an initiative taken in the Brazilian market to foster equitable hiring processes, was of Magazine Luiza, a big Brazilian retail company that has been promoting trainee programmes only for black people. According to the company, the initiative is part of a project that aims at increasing racial diversity in leadership positions. Initially, the initiative raised discussions as to its legality, but, so far, with the support of the legal community and other relevant agents, it has been shown to be an example to be followed.

Notes