Building Bridges

The Realities and Implications of Diversity and Inclusion in Construction Law

Diversity in Construction Law
Melinda S. Gentile

Melinda S. Gentile

June 17, 2020 08:00 AM

There has been considerable discussion concerning the challenges that diverse attorneys have faced in the law. Pair that with the many discussions about the range of experiences diverse individuals have had in the construction industry, and a level of insight into the life of a diverse construction attorney begins to form. Little public attention, however, has been placed on the diverse construction lawyers’ unique experiences, whether in private practice or an in-house counsel role. In fact, there is a dearth of published information addressing diversity in construction law at all. Let’s take a closer look at the current state of the challenges and opportunities facing the growing pool of this highly talented group.

As an obvious yet central starting point, construction lawyers, by definition, serve the construction industry. Construction is an industry with a well-recognized history that would not be characterized as diverse. That’s changing now, with outstanding leadership in this regard being offered by some of the nation’s largest builders. But overall, diversity in the construction industry is in its relatively early stages of evolution, and the industry was slower to adopt these practices for a variety of reasons.

In turn, diverse construction lawyers essentially face a two-tiered challenge. First, diverse construction lawyers face the prospect of penetrating the legal profession as that profession was and continues to evolve in expanding diversity itself. Secondly, the clients that construction lawyers serve were and remain in the process of addressing diversity challenges in that industry, more so than other industries.

The emerging issues of diversity in the construction industry are being addressed by leading general contractors in the industry, as well as in organizations such as The National Association of Women in Construction (NAWIC) and national conferences like Groundbreaking Women in Construction (GWIC). Leading companies across the construction industry, at all levels of leadership, are realizing the benefits and attributes of increased diversity. Improving diversity through expanding the potential pool of talent across all business lines has become a key consideration for construction companies, particularly those entering and expanding across the U.S. and in international markets.

Financially, this consideration is driven by numbers—the understanding that diversity has generated a competitive advantage for construction companies. As a result, more construction companies are addressing the role diversity currently plays in the construction industry, how diversity has assisted premier construction companies in creating and maintaining a competitive advantage, and how emerging trends in diversity are likely to alter the landscape at all levels of the industry, including the law firms that service the industry. That effort by construction companies ultimately serves diverse construction lawyers who face the latter rung of the two-tiered challenge described above.

Law firms are moving beyond the concept of diversity as being “the right thing to do,” focusing instead on the business, economic, and societal benefits it brings. The business and economic benefits law firms see are derivative, in part, from the reality that their clients are increasingly diverse. Clients that seek diversity internally generally seek diversity externally, and we are beginning to see that factor take hold in the construction industry—made manifest by the fact that in-house attorneys at construction companies are beginning to make diversity a consideration in the selection of outside counsel, in turn helping pave the way for diverse construction lawyers.

Meanwhile, although diversity in hiring has expanded at the law firm level in general, hiring decisions alone are not enough to facilitate a future for diverse construction lawyers. Statistics show that many law firms are relatively successful in attracting diverse lawyers, but the second rung faced by the diverse construction lawyer and by law firms—retention—becomes the next challenge. For example, although women comprise 45 percent of law firm associates, they only account for 19 percent of equity partners in private law firms.

"Leading companies across the construction industry, at all levels of leadership, are realizing the benefits and attributes of increased diversity."

Although statistics are not available, many have noted that the construction industry has been particularly active in recruiting diverse construction lawyers from private practice to in-house positions at construction and design firms. While diverse candidates have moved to successful in-house careers, this reality has presented an added challenge for private law firms in expanding diversity at higher ranks. Compounding the challenge, studies have shown that it costs 100 to 150 percent of salary to replace female junior associates, 150 to 210 percent to replace female senior associates and a staggering 210 to 400 percent to replace female partners—an increase of roughly 10 to 20 percent across the board compared to the cost of replacing male counterparts. (See FIG.1)

Certain studies have shown that while 91 percent of law firm leaders believe their firms are active advocates of gender diversity, only 62 percent of women lawyers thought the same thing—a marked difference in perception that sends a signal about one key issue: a law firm’s culture.

A culture genuinely supportive of the development of diverse candidates is central to a law firm’s success in the retention and growth of a diverse team, in construction or any other area of the law. That culture may be demonstrated by providing the tools and opportunities, together with support necessary to achieve the goals. Focus and attention must be given not just to developing competencies aimed at creating skills for success inside the law firm, but with the clients the firm represents as well. Training, even leadership training, for diverse individuals is not enough. Such training is valuable, but the real power comes when it is coupled with real opportunities external to the law firm.

A culture of support for diverse lawyers can also be demonstrated by training, of course. Initiatives and programs that encourage diversity, diversity training, and promotion of diverse individuals within the firm and with clients are surely beneficial. For these initiatives to work, it is imperative that the formal programs be coupled with a genuine commitment by the firm’s leadership. These initiatives are, in turn, in furtherance of the firm’s culture. There is no one-size-fits-all solution. Firms should tap into the creativity of their own lawyers to create solutions that can work within the context of a firm’s culture that genuinely embraces diversity.

"Law firms are moving beyond the concept of diversity as being 'the right thing to do,' focusing instead on the business, economic, and societal benefits it brings."

Education about inclusion across all levels of the firm is a valuable component of training. Acceptance and Commitment Training (ACT), often being used now, has shown to be effective. A behavioral intervention, ACT is designed to create more “psychological flexibility” by helping individuals come into greater contact with others’ personal experiences while undermining the dominance of mindless thoughts and gut reactions, also known as “implicit bias.” Implicit bias is everywhere. It occurs when a well-intended individual’s unconscious assumptions get in the way of objectively gathering information or assessing another individual or situation. This bias thrives in the void of self-awareness.

Implicit bias does not involve overt prejudices but rather learned biases gained from life experiences. Every human being possesses implicit bias. Cognitive study has shown that just 10 percent of cognitive activity is conscious thought. The other 90 percent are automatic, non-conscious brain processes (biases, gut feelings, emotional reactions, social judgments) which occur parallel to intentional conscious thought. These biases are subtle and insidious because they often take the form of unintentional, unconscious thoughts of which the individual is unaware.

ACT does not aim to change thoughts, feelings, or biases. Rather, it accepts these non-conscious brain processes as a natural part of the human condition. ACT instead educates people on their own psychological flexibility (or inflexibility) and shifts one’s relationship to external events. The individual is educated to identify implicit bias and to pause without judgment so the cycle of reaction can be interrupted.

The focus on learning the skills for taking effective action in the face of long-established automatic thoughts and feelings is what makes ACT an effective tool in diversity and inclusion—and it is precisely for these reasons that ACT is effective with lawyers who are taught to value their objectivity and cognitive thought. A firm’s understanding of implicit bias can help protect it against unnecessary turnover resulting from these largely unnoticed or subconscious acts, the cumulative result of which is akin to the infamous death by a thousand cuts.

Consider this premise: It has been said that it is not the diverse individual who needs to be fixed; it is an organization’s structure and culture that needs to be addressed. That same concept applies not just in the legal profession, but in many industries.

American law firms have touted their commitment to diversity and inclusion, and statistics show that there is marginal progress on diversity in the attorney workforce from year to year, even as demands grow from clients expecting more diverse legal teams. To accelerate progress beyond marginal advances is complex for all law firms and practice areas, but the two-tiered challenge for construction lawyers is even greater. There is no easy, quick, or convenient answer.

There are difficult challenges that must be addressed in order to accelerate diversity and inclusion in construction law, and particularly so for diverse lawyers facing the two-tiered challenge in private practice. A genuine culture that supports the growth of diverse construction lawyers both in law firms and among the clients they serve, will be the key.

Florida Bar board-certified construction law attorney Melinda S. Gentile is a Miami partner at the national construction law firm of Peckar & Abramson, P.C. and serves as the firm's diversity chair and executive committee liaison. She is the co-chair of the annual Groundbreaking Women in Construction (GWIC) conference. Gentile may be reached at:

Headline Image: ISTOCK / WARCHI

Related Articles

Memphis Bar Gets First Black Female President

by Anissa Cordova

Best Lawyers is celebrating listed lawyer Tannera George Gibson who has become the first ever black female president of the Memphis Bar Association.

First Black Female President for Memphis Bar

High Court Merit

by Tracy Collins Ortlieb

In progressive legal circles, the name Robbie Kaplan has emerged as an omnipresent force for equal and human rights.

Q&A With Roberta Kaplan

The State of Women Inventors

by Amanda Hermans and Kate Rockwood

What’s being done to improve the gender patent gap—and how attorneys can help.

How to Improve the Gender Patent Gap

Equal to the Task

by Joyce D. Edelman

Fighting for gender equity in the law firm can seem like the very definition of a thankless task. But you just might find yourself able to make great strides.

Gender Equity in the Workplace

Pride Month: Going Beyond Corporate Rainbow Washing

by Gregory Sirico

Pride Month gives corporations an opportunity to showcase their support for inclusivity and acceptance, going beyond just logos and marketing campaigns.

Three animated figures wearing suits with rainbow in backdrop

Crucial Alliances

by Jane E. Young

Workplaces everywhere have changed since the start of the pandemic in ways that can be highly beneficial to women. Here’s a road map for consolidating recent gains—and making the most of them going forward.

Woman at desk working with roadmap behind her

Top of the Mountain

by LaVon M. Johns and Patricia Brown Holmes

Making partner, ginning up huge business, earning peer respect and industry influence are laudable goals—but it’s important to pursue them methodically and mindfully. One dynamic duo who have reached the mountaintop show how it’s done.

Red flag sitting on the top of a mountain summit

A Beautiful Mind: Motown Beginnings, Top Dealmaker

by Sara Collin

Motown scion Farah Fakir Cook has achieved her own stardom away from the klieg lights, helping clients navigate ever-changing currents in intellectual property and technology. One crucial topic looms especially large for her in the years ahead: How current law will contend with the rise of artificial intelligence.

Woman wearing pink suit standing against desk

Progress and Potential

by Michele M. Jochner

Women have undeniably made great strides in our profession in recent decades, but much remains to be done. What’s the current state of the industry, what lies ahead—and what do lawyers (male and female alike) say are the most important issues going forward

Watercolor image of person on a mountain looking at night sky

The Breadwinner

by Courtney E. Ervin

Two lawyers, one big life decision: How my husband and I are working to eradicate the stigma of putting my career first.

Silhouette of women in suit stands in the middle of equal scale

Canadian Women in the Legal Profession: From Non-‘Persons’ to Chief Justices

by Sara Collin

We take an in-depth look at the challenges and optimistic future of women in the Canadian legal sector.

Canadian Women in the Legal Profession

Anna Inventing: The Importance of Diversity in Innovation

by Emily C. Peyser

A patent from 1887 by female inventor Anna Connelly not only revolutionized fire safety, but highlighted the need for diversity in innovation. Our world is facing big problems that need diverse voices at the table to find solutions that work for everyone. Building diverse teams and encouraging diversity in innovation is a beneficial step forward in resolving our collective challenges.

Diversity in Innovation and Technology

The Future of Litigation Is Changing for Female Solicitors in the U.K.

by Catherine Baksi

The support of entire law firms, organizations and senior counsel members will be the key to encouraging female solicitors and positive change in the industry.

Changing Litigation for UK Female Solicitors

New Sheriff in Town on ESG

by Patricia Brown Holmes

Various regulatory agencies within the Biden Administration are stepping up enforcement of corporate malfeasance in the ever-trendy ESG space.

ESG Enforcement in the Corporate Environment

Follow the Money

by Rachel F. Sifuentes

Women are the future of fintech—but in the here and now, they’re still being underserved in an industry otherwise marked by explosive growth. Here’s why that must change.

Women and the Future of Fintech

Privacy Practice

by Casey Waughn

Data protection is all the rage among tech companies and state, national (and even transnational) governments alike. Is it a passing fad or here to stay? And how should businesses and groups of all sizes handle compliance with a blizzard of new laws?

Data Protection Prompt New Privacy Laws

Trending Articles

The 2024 Best Lawyers in Spain™

by Best Lawyers

Best Lawyers is honored to announce the 16th edition of The Best Lawyers in Spain™ and the third edition of Best Lawyers: Ones to Watch in Spain™ for 2024.

Tall buildings and rushing traffic against clouds and sun in sky

Best Lawyers Expands Chilean 2024 Awards

by Best Lawyers

Best Lawyers is pleased to announce the 14th edition of The Best Lawyers in Chile™ and the inaugural edition of Best Lawyers: Ones to Watch in Chile™, honoring the top lawyers and firms conferred on by their Chilean peers.

Landscape of city in Chile

The Best Lawyers in Spain™ 2023

by Best Lawyers

Announcing Spain's recognized lawyers for 2023.

Flag of Spain

Announcing The Best Lawyers in South Africa™ 2024

by Best Lawyers

Best Lawyers is excited to announce the landmark 15th edition of The Best Lawyers in South Africa™ for 2024, including the exclusive "Law Firm of the Year" awards.

Sky view of South Africa town and waterways

Announcing the 2023 The Best Lawyers in America Honorees

by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

The Best Lawyers in Portugal™ 2024

by Best Lawyers

The 2024 awards for Portugal include the 14th edition of The Best Lawyers in Portugal™ and 2nd edition of Best Lawyers: Ones to Watch in Portugal™.

City and beach with green water and blue sky

The Best Lawyers in Peru™ 2024

by Best Lawyers

Best Lawyers is excited to announce the landmark 10th edition of The Best Lawyers in Peru, the prestigious award recognizing the country's lop legal talent.

Landscape of Peru city with cliffside and ocean

The Best Lawyers in South Africa™ 2023

by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag

The Best Lawyers in Chile™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms in Chile.

White star in blue box beside white box with red box on bottom

The Best Lawyers in Colombia™ 2024

by Best Lawyers

Best Lawyers is honored to announce the 14th edition of The Best Lawyers in Colombia™ for 2024, which honors Colombia's most esteemed lawyers and law firms.

Cityscape of Colombia with blue cloudy sky above

Announcing the 2024 Best Lawyers in Puerto Rico™

by Best Lawyers

Best Lawyers is proud to announce the 11th edition of The Best Lawyers in Puerto Rico™, honoring the top lawyers and firms across the country for 2024.

View of Puerto Rico city from the ocean

The 2023 Best Lawyers in Portugal™

by Best Lawyers

Announcing the elite group of lawyers recognized in Portugal for 2023.

Green and red Portuguese flag

Best Lawyers: Ones to Watch in America for 2023

by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

Unwrapping Shrinkflation

by Justin Smulison

Through the lens of the United States, we take a closer look at the global implication of companies downsizing products while maintaining and often raising prices.

Chocolate bar being unwrapped from foil

2021 Best Lawyers: The Global Issue

by Best Lawyers

The 2021 Global Issue features top legal talent from the most recent editions of Best Lawyers and Best Lawyers: Ones to Watch worldwide.

2021 Best Lawyers: The Global Issue

Announcing the 2023 The Best Lawyers in Canada Honorees

by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots