Law 360 recently reported that two law firms are revamping their performance evaluation process for associate attorneys by replacing formal annual reviews with more informal, frequent performance assessments. Law360 also reported that other BigLaw firms are likely to follow suit. Law firms that have initiated these changes explain that more frequent, timely feedback on performance enables associates to improve their performance and to better understand their prospects for advancement. Legal industry observers are hopeful that the changes signal a more progressive approach to the employment relationship in BigLaw.
As an employment discrimination attorney, I am hopeful that law firms will use this opportunity to also consider how to design performance reviews in a manner that reduces the effects of discrimination and bias. Too often, actual assessments of an associate’s performance go unsaid, to the detriment of many female lawyers. Furthermore, even when feedback is communicated through the review process, this feedback is frequently tainted by gender bias and gender stereotyping, as my colleague Melinda Koster explained in her post last year.
How can law firms help ensure that their performance review process is not affected by discrimination and bias? The best way to do this is to establish consistent and clear metrics for evaluating employees. By requiring that evaluation recommendations and decisions be explained and justified relative to clear metrics, employers make it less likely that decisions will be made on the basis of unarticulated factors, including discrimination and bias. A negative review should not be justified on the basis that an associate should, for example, “do more business development.” Instead, the employer should be specific and provide certain metrics. Tell her to “speak on at least 4 panels this year,” or “write at least 2 articles,” or “join at least one board of directors.” It is also important to ensure that the same metrics are applied consistently. Too often, female clients tell me that they are criticized for their business development while their male colleagues have business handed to them by more senior male attorneys. Establishing and communicating clear, consistent metrics can minimize this risk of discrimination and bias.
Clearly marked and communicated metrics have the added benefit of improving associate performance. Employees who are left in the dark about how they’re doing and what they can do to improve will not improve. Law firms that are clear about what is expected of associates are more likely to have associates who meet those expectations.
As an employment discrimination lawyer, I counsel many employees, including BigLaw attorneys, in navigating and interpreting their performance reviews. Too often, law firms make only minimal efforts to assess associate performance, and do so using only vague generalizations. I am hopeful that law firms will reconsider their evaluation processes, and consider requiring associates to be judged on the basis of clear metrics to lower the risk that they are judged on the basis of an unspoken, unlawful criteria: gender.