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«Differentiation and discrimination: Understanding social class and social exclusion in the UK’s leading law firms Louise Ashley and Laura Empson ...»

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Cass Centre for Professional Service Firms

Working Paper CPSF-006

Differentiation and discrimination: Understanding social

class and social exclusion in the UK’s leading law firms

Louise Ashley and Laura Empson

louise.ashley@city.ac.uk, laura.empson@city.ac.uk

Do not cite or quote without the authors’ permission

www.cass.ac.uk/cpsf

Cass Centre for Professional Service Firms – Working Paper 006 - 2011

Abstract

For leading professional service firms in the UK, diversity and inclusion has become an important human resources strategy during the past fifteen years. A recent focus on social class has been encouraged by increasing governmental concerns relating to social mobility which acknowledge that elite professions, particularly the law, have become more socially exclusive over the past thirty years. Based on a detailed analysis of six leading law firms, this paper asks: why do leading law firms discriminate on the basis of social class? It argues that discrimination is a response to conflicting commercial imperatives, the first to attract talent and the second to reduce risk and enhance their image. The paper describes these dynamics emphasising the role played by the ambiguity of knowledge. It concludes by arguing that until these conflicting demands are reconciled, organisational and statesponsored diversity initiatives centred on the ‘business case’ will achieve only limited success.

Keywords: Diversity and Inclusion, Inequality, Law Firms, Professional Services, Social Class Introduction In May 1997, a Labour government was elected in the UK led by Prime Minister Tony Blair. Despite its foundation on notionally socialist principles, this administration sought to avoid the topic of social class. Indeed, early in his first term Blair made a bold claim that the class war is over 1. This somewhat optimistic rhetoric was cut short ten years later with the commissioning of a review specifically examining social mobility and the professions, headed by then Labour Minister, Alan Milburn. This report, known as the Milburn Review, was a response to concern that entry into the   Cass Centre for Professional Service Firms – Working Paper 006 - 2011 professions in the UK had become significantly more difficult for less privileged people during the past thirty years (Cabinet Office, 2009). For example, lawyers born in 1970 grew up in families with an income 65 per cent above the national average, compared to 38 per cent above in 1958. These issues were identified as particularly acute within the legal sector, and in the leading commercial law firms that are the subject of this study 2 (Sutton Trust, 2005).

Limiting access to the professions on the basis of social class hasbeen posited as problematic for two main reasons. On the basis of social justice, writers such as Sommerlad (2007) have argued that the professions have historically acted as an important mobility project for less privileged people. It is also argued that by stifling the entry and progress of diverse talent in its ranks, the UK professional services sector as a whole is risking its reputation for dynamism, innovation and creativity (Cabinet Office, 2009; Kirton and Greene, 2007). Echoing these latter concerns, arguments in favour of widening access such as those found within the Milburn Review are positioned as part of a diversity discourse for which the ‘business case’ is an important driver (Cabinet Office, 2009).

A number of explanations for discrimination have been put forward. Analyses focusing on the supply side highlight the reduced social and human capital available to less privileged people (Becker, 1975; Bourdieu, 1972, 1984, 1986). As such, exclusion is seen, at least in part, as the result of processes happening in wider society (Rolfe and Anderson, 2003; Shiner, 1997, 1999, 2000). By contrast, explanations focusing on the demand side suggest that discrimination by professional service firms serves a clear business purpose. Market control theorists

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focus on unequal ownership of cultural capital and frame exclusion as a defensive position practised by existing elites (Ackroyd and Muzio, 2004; Larson, 1977;

Sommerlad, 2007). Hanlon (2004) sees exclusion and homology as a product of the legal sector’s historical development, with similarities between client and advisor helping to build reputational capital, status and trust.

Each of these analyses offers a potentially useful but only partial explanation for this paper’s key question, namely, why do leading law firms discriminate on the basis of social class? Based on an analysis of diversity policy and practice at six leading law firms and drawing on work by Alvesson (1993, 2001) and Empson (2001), this article argues that in these knowledge intensive firms, clients find it difficult to judge the relative or absolute quality of work and as a result, image becomes an important proxy for ‘quality’. Leading law firms seek to project a ‘high-class’ image by appointing graduates with the requisite forms of social, human, cultural and reputational capital. Many less privileged people are unable to access some or all of these forms of capital and as a result are excluded from the profession, no matter how great their intellect. Some relatively privileged people may on the other hand gain entry despite showing limited real aptitude. In short, we contend that the sector’s rhetorical commitment to recruiting only the most able graduates does not always coincide, and may often conflict, with a secondary objective to enhance their image and reduce risk. Resolving this tension will be critical if social inclusion is to be achieved within the profession.





We begin this article by reviewing the relevant literature and positioning our study against work outlined above. We then go on to describe the methodology and

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provide details of the six case study law firms. The third section comprises the main empirical analysis. This shows first that the emphasis on image is relevant to each of the case study firms but second, that the precise emphasis on diverse talent versus the projection of the appropriate image differs within and between firms. We identify several overlapping characteristics which affect this balance. These include the profile of the firm’s specific client base; the nature of its work; the organisational culture; and the brand it wishes to project. Paradoxically perhaps, these differences underline the consistency with which leading firms prioritise image by demonstrating that discriminating on the basis of social class is a commercial strategy rather than a structural accident. The concluding section argues that the business case for reducing discrimination on the basis of social class is highly contingent. As such, we ask whether a diversity agenda based on economic incentives can effect real and lasting change (Noon, 2007).

Theoretical context Numerous studies have demonstrated how cultural practices within the legal sector maintain exclusionary mechanisms based on social class (Boon, Duff and Shiner, 2001; Rolfe and Anderson, 2003; Shiner, 1997, 1999, 2000; Sommerlad and Sanderson, 2002; Sommerlad 2007). Although explanations for this situation originally tended to focus on direct discrimination, more recently scholars have highlighted the many more subtle and complex issues relating to differentiation and subordination (Rolfe and Anderson, 2003). The following section examines the role played by differential access to social, human, cultural and reputational capital in relation to social exclusion in the context of the legal profession, before going on to explore the impact of ambiguity in relation to image.

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Human and social capital During the past fifteen years the number of law graduates within the UK has dramatically increased. This has been achieved partly through the creation of a number of new courses provided by the UK’s ‘new’ universities, ex-polytechnics which became universities under the Further and Higher Education Act in 1992.

Though this latter process was aimed at opening up higher education to students from a wider range of backgrounds on the basis of both ethnicity and class, leading law firms have not become more socially inclusive as a result (Cabinet Office, 2009).

This can be partly attributed to the preferences of leading law firms with regard to the human capital of their new trainees, defined in this context as the stock of competencies, skills and knowledge demonstrated by an individual’s ability to work and produce economic value (Becker, 1964). Rolfe and Anderson (2003) have shown that law firms tend to prioritise four key factors when recruiting graduates in this respect. These include high A-level grades 3, attendance at an ‘old’ university 4, strong academic performance, and work experience in a law firm.

These criteria may seem entirely natural as a means to test potential, and law firms often insist that the higher entry requirements of old universities mean that their graduates must quite simply be ‘better’ (Rolfe and Anderson, 2003). With many leading law firms faced with over 3000 applications for less than 150 trainee contracts each year, it is inevitable that law firms will exclude many applicants and discriminating on the basis of objective qualifications may seem logical and indeed fair. However, this bias adds up to a cumulative disadvantage for students from less privileged backgrounds (Reay et al., 2001). These students are not only less likely to achieve high A-level grades but are more likely to attend a new university. Studies

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have shown that this is not necessarily a reflection of lesser ability but of unequal access to resources and effective teaching (Metcalf, 1997). Even where these barriers are surmounted, studies have discovered that highly qualified, but financially poor students may choose to study at a new university especially when it is closer to home, as a result of poor information or because this is perceived as less costly (Archer et al., 2007; Reay et al., 2001). They are also are more likely to carry out paid employment, with implications for their performance during their studies (Vignaendra, 2001). Students educated at private or fee-paying 5 schools are on the other hand more likely to achieve higher A-level grades and to select more traditional examination subjects, including maths, sciences, and languages, which facilitate entry to leading universities. As a result, these students gain entry in higher numbers to these institutions. For example, at Cambridge just over 40 per cent and at Oxford just under 57 per cent of full-time undergraduates during 2009/10 were educated privately, compared to seven per cent of the population (Cabinet Office, 2009).

Inevitably, this bias feeds through to the law firms who recruit from these and other leading universities.

Less privileged people not only lack human capital. Closely related to this is their relative lack of social capital. This term can broadly be defined as the values and networks passed down from family and developed through friends (Bourdieu, 1972, 1984, 1986; Coleman, 1998). Differential ownership of social capital has an impact on an individual’s ability to access a career in the law and the likelihood that they should aspire to do so (Allatt, 1993; Reay, 2005; Skeggs, 1997). Whilst it is no longer necessary to have direct personal contacts within the law to guarantee entry (Hanlon, 2004), access to a range of formal or informal social networks with experience in this

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sphere does provide a clear advantage (Cabinet Office, 2009; Elias and Purcell, 2003). People from working class families are said to be disadvantaged since they are less able to establish social networks beyond their immediate circle, whilst those of middle-class and more privileged families tend to be more diverse (Department for Education and Skills, 2003; Public Accounts Committee, 2009). These networks are essential since getting into leading firms requires knowledge of what kinds of professional careers are available, along with the preferred qualifications and credentials, including choice of university and degree course (Rolfe and Anderson, 2003; Shiner, 1997, 1999, 2000).

Cultural and reputational capital Prioritising the role of social and human capital may be read as an attempt to remove the ‘blame’ for discrimination from law firms, since exclusion is seen as largely the result of factors originating outside the workplace. For market control theorists however, class-based discrimination based on occupational closure is a defensive strategy practised within the professions to enable existing elites to maximise rewards by ‘restricting access to rewards and opportunities to a limited circle or eligibles’ (Parkin, 1974: 3). This is achieved through the imposition of a number of overt and covert rules which sanction exclusion and render finite what are, in theory at least, inexhaustible knowledge resources (Abel, 1988; Ackroyd and Muzio, 2007;

Bolton and Muzio, 2007; 2008; Larson, 1977; Murphy, 1988; Parkin, 1974).

Within the legal sector, this argument has been most developed by Sommerlad (2007) who argues that, whilst law firms may place an explicit emphasis on human capital, in reality they also assess candidates according to their possession of cultural capital. This notion suggests that workers, and particularly high-status

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