Latin America has a rich and diverse culture with a population of over 660 million people from many different ethnic groups and cultural ancestries. Due to the region’s diversity, it is essential for companies and their workforces to continuously prioritize the need for diversity and inclusion in their general work environments, including in their boards and senior management positions, which data indicates are more than 90% occupied by men, mostly from a similar ethnic group.

Studies show that Latin American women are underrepresented among the top echelons of the legal profession – as they also are in the wider corporate environment – despite having a higher level of education than their male counterparts on average (as is the case in Brazil, for instance) or them representing half of the students in law school (as is the case in Mexico).

In the region, both the legal profession and the wider corporate environment face similar challenges in terms of gender equality.

The causes of this inequality are perceived by women as being rooted in the traditional unequal distribution of domestic tasks, the culture of ‘machismo’ and unconscious bias. Apart from purely career-related consequences, these causes also result in other unwanted behaviours, such as workplace harassment, which is frequently mentioned by women when asked about their working conditions.

Much remains to be done in this regard, but over the past 20 years, diverse groups have been trying to raise their voices to increase awareness and fight for their rights and needs. In particular, women have launched initiatives which aim at empowering themselves into a force to be reckoned with and at making opportunities for themselves. They have created groups – like Lawyers in Skirts, in Brazil – to develop their network and mentor each other to achieve their career objectives.

These groups organise workshops and conferences about inclusion, diversity, and women leadership, and have brought to the public’s attention that the evolution of these issues is intricately linked to the economic development of their region and respective countries.

Indeed, gender equality has been proven to contribute to poverty reduction and economic development. According to a McKinsey study, there would be an 11% automatic increase in the global GDP if the gender gap were closed, and specifically, the Latin American GDP would increase by 14% if women were encouraged and assisted in participating as economic actors.

The groups have reached out to female lawyers from other jurisdictions, where accessing top positions is perceived to be easier, and often receive their support. The organisation WILL (Women in Leadership in Latin America), a São Paulo-based non-profit unit, now has advisory boards in Bogotá, the US and London, which enable them to have access to a wider audience and help established lawyers, as well as aspiring ones supporting them throughout their careers.

These organisations already see improvement in top-tier law firms and corporations, but they now want to reach all women with legal degrees, and even expand their programmes to universities, broadening their socio-economic reach into any social group or institution where bias might lurk.

Interestingly, despite women finding it challenging not to have peers to exchange ideas with when they make it to the top echelons of a law firm, it appears that some of these organisations – like Abogadas MX, in Mexico – are admitting men as workshop participants, allies and even board members and mentors. Generally, the non-profits have found this experience enriching, and have discovered that their presence brings the opportunity for a synergistic learning experience, showing that diversity is a question that concerns us all, regardless of gender.

In most cases, if not in all, these groups work towards women being in a fair competition with men – they do not advocate for women to be given extra rights solely based on their gender, but rather, an even playing field.

And indeed, after years of fieldwork, they conclude that lawyers can help:

1. They can impact policies and laws through the specialized skills of their profession and demonstrate how important it is to support women in general. In several jurisdictions, women do not have access to courts or fair laws, for instance, and some gender-related legal issues, like gender violence, are still common in Latin America. Consequently, they feel that there is a lot of space to improve the laws, but also to give equal access to the court system.
2. At a corporate level, lawyers can participate in advocating and creating policies for companies that need to adopt gender inclusion and diversity policies.
3. Furthermore, employees rely upon legal departments to be stewards of ethics and good governance, meaning that these departments must set a good example and promote diversity and inclusion themselves.

Their influence over corporate policies might even be greater in the post-Covid-19 pandemic world. The above-mentioned McKinsey study shows that during the pandemic, women, LGBTQ+ people, POC and parents were found to be struggling more with issues such as mental health, work-life balance, isolation (from co-workers and managers) and job opportunities. These issues were also more pronounced in emerging economies and, in several jurisdictions, were accentuated by a surge in gender-based violence linked to the work-from-home policies.

Many companies have since attempted to offer more policies that are responsive to these struggles and provide greater balance, flexibility, and improve their internal communication.

Given the importance of D&I, this report intends to offer fresh perspectives and insights from across the Americas on where we are as a legal community and also suggestions on what is working to advance inclusion across the Americas.

Through interviews with leading GCs from all over the region, we found that though the situations and nuances differed from country to country, and some seem to be doing better than others there is much that can be learned from one another.

Colombia, for instance, has a high percentage of women in leadership positions, and women have space in the corporate world. In Brazil, however, gender inequality seems to come in addition to other discriminations, such as sexual orientation or ethnicity.

The consensus we found is that, in addition to improving the corporate culture, the legal and regulatory frameworks could be modified to help with D&I. For instance, more transparency could be asked from companies about their hiring/promotion processes and policies could be passed to protect D&I leaders within companies, etc.

However, implementing a change entails asking people to change their behaviour, which they might resist. This requires leadership, diplomacy and pedagogy, and to place the right people in the right positions.

Boards and management teams should always be transparent as to what they are trying to achieve, how they are trying to achieve it, and they should be able to measure the results of any new policy.

In a sense, leveraging the collective experience of a diverse workforce is not as simple as hiring different people and alchemizing their perspectives into corporate gold. Inclusion is as fundamental – it is essential to create an environment where diverse people can feel welcome enough to perform at their full potential.

Maria-Leticia Ossa Daza
Chair of the Latin America Practice
Willkie Farr & Gallagher

Allan Cohen
Research Editor
The Legal 500: In-House Research Team

It is a fact that the hiring process is often dogged by bias. Of course, hiring managers do not reject applications from minority candidates, but unconscious biases have been shown time and again to skew hiring decisions.

Diverse applicants are acutely aware of the risks.

‘Back in the early 2000s, I found that it was very easy to identify who diverse candidates were’, says Phyllis Harris, general counsel, chief compliance, ethics and government relations officer, at the American Red Cross.

‘You could pick it up from a school, a name, you might pick it up from the organization. What is interesting is that, over time, I have seen a 180° whitewashing in résumés. There are candidates out there that believe that they are not going to get an opportunity to interview if someone can readily identify their racial make-up and their racial identity. I know people who have gone as far as changing their first name because they did not want to stand out.’

‘We like to talk about inauthenticity. How inauthentic are you if you have to make a conscious decision to say this résumé cannot in any way reflect that I am African American or that I am native American? You are going into a workplace and, on the very first day, you are not comfortable in being yourself.’

But what if you could remove bias from the hiring process? Some claim that you can.

Automated hiring introduces technologies such as artificial intelligence (AI) and machine learning (ML) into the recruitment process, helping to pre-screen résumés that do not meet requirements. In some cases, these tools are now being used to eliminate the need for a human interviewer to interact with prospective new hires. If the process is less human, there will be less scope for human preconceptions to overlook the best talent. Right?

Not according to Ifeoma Ajunwa, associate professor of Law at UNC School of Law, and founding director of the school’s artificial intelligence and decision-making research program. She has seen workplaces embrace algorithm-based technologies for convenience and cost-savings in the recruitment process – as well as in other areas such as training, safety or productivity monitoring and surveillance – filtering out high volumes of applicants, even in white-collar roles. But she has grave misgivings about its potential for discrimination.

‘Automated hiring is seen by a lot of white shoe firms and big companies as an anti-bias intervention. A lot of these firms are turning to automated hiring in good will, with good intentions – they think it’s a way to ameliorate the bias of hiring,’ she explains.

‘The problem, however, is that because hiring platforms are not well regulated, the reality is that they are in fact replicating the bias that already exists and they could actually be exacerbating it. If you have a flaw in an automated hiring system, that flaw is prone to be replicated a million times, versus when you have one biased manager.’

Disparate impact

The problem is that of disparate impact – apparently neutral processes whose outcomes are nevertheless harmful – where a butterfly-wing beat of inattention, ignorance or worse, can set off a tornado of exclusion.

Ajunwa gives the example of video interviewing platforms that use algorithms to measure variables like eye contact or syntax, potentially impacting candidates with autism or deafness, she says.

Closer to home, she describes the case of a former student, a computer science PhD postgrad who was rejected by a major company. On meeting with a company representative at a job fair, it became clear that her skills were perfect for the organization, and, in surprise, the representative investigated. It transpired that an automated program had screened out applicants with a BA in computer science, in favour of those with a BS.

‘It’s not really a meaningful difference. But then you also have to think about, could this have other disparate impacts? Who’s more likely to get a BA in computer science versus a BS? Could this actually have bigger disparate impacts than we know?’ she says.

‘There won’t always be quick fixes.’

Where the puck is going

Ajunwa believes that such consequential decisions being left to technology merits legal attention – and she pinpoints in-house lawyers as playing a potentially significant role in such scrutiny.

‘I think in-house lawyers are particularly at the forefront of the scene, because some of them may be general counsels advising clients on what sort of hiring programs to put in place. So they do need to be aware of these issues with automated hiring because many vendors will be trying to sell automated hiring programs to large firms, and there really is the duty of these general counsels to ensure that the client isn’t taking on a program that is going to be more of a liability than a help,’ she says.

‘At the bottom line, there’s a huge liability if companies get these issues wrong. There’s an important legal liability,’ adds Nuala O’Connor, senior vice president and chief counsel, Digital Citizenship at Walmart.

The extent of the exposure to that liability won’t be evident until the process is run, and the output – potentially reflective of biases along racial, ethnic, national origin and other discriminatory lines – there for all to see. But that’s the baseline, says O’Connor.

‘I’ve always believed that the role of in-house counsel is not just to say what the law is, but to lift up the company and say, “This is what the right thing is”. The role of the savvy in-house counsel when dealing with emerging technology is a little like the ice hockey saying – you’re looking where the puck is going, not where the puck is. This is where the puck is going. Increased use of technology, increased use of data, increased scrutiny. Increased scrutiny of the values,’ she explains.

‘Just as companies are being scrutinized for the values they espouse and having to take positions on controversial social issues, the technology and the data uses of the company are going to be scrutinized for the values inherent in those programs, policies, processes. I think that the smart lawyer and the smart counselor inside is looking at: “what have we built? How is it working, how is it functioning?” This is the digital architecture of a company, just like the four walls of a store are the physical architecture of our company, and it demands as much scrutiny.’

Lisa LeCointe-Cephas, chief ethics and compliance officer at Merck International, has not worked with automated HR systems, but she is conscious of her responsibility to consider where bias might hide in processes and tools.

‘Last week I took one of our new diversity, equity and inclusion trainings from the perspective of a black woman – “How does this read for me?” I’m very vocal about providing feedback on that, because I do think that a lot of the things that we’re building to help us, at times, can actually have biases built into them.’

She believes this awareness should also be applied to potential algorithmic bias within automated tools.

‘I’m fascinated by a lot of that work. There are these new platforms that allow you to say, “You know what? Bob is great. We want to get another Bob. And so, what are the characteristics of Bob that allow us to get another person who will be just successful?” I do worry that a lot of those things have inherent biases built into them,’ she says.

But Ajunwa feels that many in-house lawyers are not truly cognizant of the risks.

‘I think, frankly, that maybe in-house lawyers are just not as technologically astute or as technologically attuned to the nuances of how a lot of automated tools work – such that automated tools that might seem innocuous or that might be neutral could, for example, still have proxy variables that they are using, which are making them ultimately unlawfully discriminatory,’ she explains.

Digital ethics and the law

At Walmart, O’Connor is one of a growing band of corporate counsel looking at the intersection between ethics and the evolving digital ecosystem inside companies. Former president and CEO of civil liberties non-profit the Center for Democracy and Technology, O’Connor now heads up a new function called ‘Digital Citizenship’, which includes lawyers, compliance and policy professionals, as well as technologists and data architects. The organization also includes a program team called ‘Digital Values’, specifically tasked with scrutinizing values embedded in AI and ML.

Legal and digital ethics skills are increasingly at a premium, she says, putting the field in the context of mounting regulatory and corporate attention being paid to technology and data practices.

‘I do think it’s a growing field. It’s looking at technology through that civil liberties lens and through that fairness lens and being a lawyer who can help do that, I think is going to be an incredibly valuable skill,’ she says.

‘We talk a lot about the role of privacy, and I sometimes cringe a little bit because I don’t think it’s just privacy anymore. Data protection is necessary but not sufficient. It’s got to be secure; it’s got to be safe, it’s got to be held to the standards and promises that were made when the data was collected. But the use of that data has also got to be fair, it’s got to be transparent, it’s got to be accountable.’

So, how can companies distinguish between platforms selling what O’Connor terms ‘digital snake oil’ and genuinely helpful tools? And how can they make sure that genuinely helpful technologies do not amplify bias and exclusion?

Authentic auditing

For Ajunwa, the answer is auditing – an ongoing, authentic process, where disparate impacts are not only identified, but corrected. And she believes it should fall to general counsel to ensure that appropriate professionals are hired.

‘Ultimately, if there is an issue of discrimination, the employer is still responsible. The mere fact of delegating hiring to automated hiring platforms does not remove the legal responsibility to refrain from employment discrimination,’ she warns.

Some employers are sitting up and tackling the risks. In December 2021, the Data & Trust Alliance – a non-profit global consortium of leading businesses formed in September 2020 – announced a set of criteria to mitigate data and algorithmic bias in HR and workforce decisions. In recognition of the risks inherent in its members’ increased application of data, algorithms and AI in the search for talent, these ‘Algorithmic Bias Safeguards’ are intended to help companies assess vendors on criteria such as training data and model designs, bias testing methods and bias remediation, among others. They will be used by companies like American Express, CVS Health and Walmart.

O’Connor has been closely involved, since the Alliance knocked on her door to leverage the skills of her team.

‘It really was a top-down, CEO to CEO conversation that these companies are waking up to the realization they have a lot of information and data about people, they wanted to do good things with it, better things than I think the public perception is of what the amalgamation of data could mean for their personal lives,’ she says.

‘Most importantly, this is not just: “let’s put up a page of principles on the wall and it’s all good.” We’ve all done that as companies already; that’s a baseline. This is: “how do we implement? How do we operationalize? What are the questions we have to ask our vendors? What are the processes we should put in place?”’

O’Connor co-chairs the Alliance’s algorithmic decision-making in HR working group, which met weekly to consider how automated HR tools should be evaluated for bias and implemented across the HR, procurement and IT departments. The safeguards are the culmination of that project, including checklists for vendors, anti-bias diagnostic tools and metrics for outcomes.

‘Here are all the values, here are the ways you should be scrutinizing your tools, here are the places in the company that these tools might be implemented, whether that’s in hiring of new people, or an area I think that’s overlooked is advancement and promotion – who are we looking at when we’re creating new jobs or promoting people and who is getting to go on learning opportunities?’ she explains.

‘It can be as granular as: let’s look at the code and see what it does, or as general as: here are five questions you should ask your vendor. And I think it’s tailorable to small, medium and large enterprises.’

O’Connor describes other Alliance projects – one on the use of data and technology in M&A due diligence, to look at how data and technology assets are considered in the acquisition or divestiture of companies, as well as the transfer of privacy policies and commitment when entities change form.

Another studies responsible personalization, examining the values input into tailored online experiences, and the values behind the exposure of people to advertisements for products as diverse as clothing, mortgage loans or educational opportunities.

For companies able to successfully audit and uncover bias and unlawful discrimination, says Ajunwa, perhaps the stickier question is how to go about correcting it.

‘Sometimes you might think you’re using variables that are quite important for the job description or for your industry, but those factors or variables may perhaps have historically racial bias baked in,’ she says.

‘That then becomes a bigger conversation on how you disentangle variables that are widely used in your industry from racial bias.’

For O’Connor, that conversation has to prize humanity above isolated attributes: ‘It’s not just the data, it’s the decision. What is the judgment that you are applying to a human being and is that fair, is that honouring their full humanity, or is that diminishing them to some kind of stereotype or corner of the universe? I’m a believer that technology can be used to open people’s minds and horizons, but we do need to scrutinize it to make sure that’s actually what’s happening.’

Regulation

Whatever the conversations happening in-house, Ajunwa argues that auditing should also come from outside – from interventions by government agencies like the Federal Trade Commission (FTC) and the Equal Employment Opportunity Commission (EEOC).

At the state level, interest is growing and December 2021 saw a bill regulating the use of AI by employers become law in New York City, effective from January 2023. The bill requires companies to conduct a bias audit on automated employment decision tools, to notify candidates living in the city that such a tool will be used and which qualifications and characteristics it will assess, and provide the opportunity to request an alternative process.

At the federal level, the EEOC announced the launch of an initiative to ensure that AI and other hiring and employment decision-making tech tools do not discriminate unlawfully in October last year.

‘My greatest wish is for governmental agencies to really take more charge of regulating this arena of automated decision-making,’ says Ajunwa.

For now, the EEOC plans to prepare technical assistance to provide guidance on algorithmic fairness and AI use in employment decisions. But, Ajunwa believes that judicious use of similar technology could actually assist in the process of creating and enforcing regulation.

‘I think they can do it by actually deploying some automated decision-making tools themselves. The EEOC could use automated decision-making tools to search for disparate impacts from automated hiring platforms or other online platforms. The FTC, which is in charge of the Fair Credit Reporting Act, could actually use that to ensure applicants get more information about their online applications – basically they can use it to reverse the current informational asymmetry between employees and employers when it comes to automated hiring.’

Stepping out of the silo

For data ethics to exist outside of a vacuum, and for any efforts at mitigating bias and disparate impacts in automated employment decision-making to succeed, they must be part of a collaborative effort, says Ajunwa.

‘There is this siloed effect, where you have ethics organizations off to the side writing papers, doing research, and then you have corporations also off to the side, and there’s not really enough conversation between the two,’ she says.

She hopes that more corporations will collaborate with leading edge social and computer science researchers and legal scholars in evaluating their programs and flagging issues.

‘I know of companies using what they claim is research to create automated hiring programs, but it’s research from the 1960s. Yeah, sure it’s research, but I can guarantee you how dated, probably racially and gender biased, and so on that will be,’ she says.

The Data & Trust Alliance has also taken a multi-disciplinary approach: O’Connor’s working group brings together professionals from the fields of law, technology, procurement and diversity. The resulting algorithmic bias vendor evaluation criteria were developed by a coalition of member companies, with input from vendors, business, academia and civil society.

At UNC Law School, Ajunwa has worked to broaden the skillset of lawyers themselves, founding the Artificial Intelligence and Decision-Making Research Program in recognition of the need for a new generation of lawyers to understand not only the nuances of the law, but also the capabilities and potential of emerging technology – and what legal issues could arise.

To ensure the message is reaching employers, Ajunwa also sits on a technology advisory council for a Fortune 500 company, providing expert ethical opinion and advice on products and relationships.

‘Currently our model of dealing with discrimination in the United States is flawed. We have a litigation paradigm where you are basically putting out fires after they’ve already started. I think general counsels should counsel their corporations to rethink that model and not wait until they are faced with litigation to address potential issues,’ she says.

‘Instead of waiting to get a lawsuit and then scrambling to defend themselves, maybe they should have advisory councils already in place so that they can get concrete and useful advice as they are conceiving and rolling out products and entering into relationships with other corporations or entities such as governments. A tech advisory council is useful for that and can actually spot issues before they start – they can spot hotspots before they turn into a full-blown fire.’

I think we are starting to see some first steps towards real change in terms of greater diversity and inclusion. But there is still a long way to go. Most of these discussions (maybe with the exception of that around gender diversity, which is a conversation that has been going on for a while, with limited progress – the glass ceiling is still very real) are fairly new in the region. So, even though there is some progress, it is still incipient. And it would also be naive to say that there is not some good amount of performative discussions taking place.

However, we have seen a lot of companies and many startups in the region making deliberate efforts to promote diversity. They have launched honest (and, in many cases, successful) initiatives aimed at recruiting diverse teams and fostering inclusive cultures. And that is wonderful. My sense is it is probably easier (and more critical) for younger companies to take diversity seriously from the start. Younger people are typically more aware and vocal about these questions. Also, investors (who are obviously critical pieces in the startup ecosystem) are increasingly concerned about this. So, this is likely to foster more inclusive environments, as everyone’s incentives are aligned.

Tech (and finance) has traditionally been a male-dominated arena and there are structural reasons that make change slow and difficult. In tech, the problem starts at an early age, given prevailing stereotypes (e.g., “boys are better at science than girls”). For instance, the toy offer for girls traditionally has been focused towards nurturing roles, whereas for boys it has typically emphasized Stem abilities and physical activity. What follows is less girls engaging in Stem subjects (especially at an advanced level) and then going into tech-intensive careers. As a consequence, there are few role-models for women within the sector. So, there is a vicious cycle, because there are just less women engineers/developers in the market, which means you have to make a conscious effort to look for these women when recruiting for these roles (which, in our case, is all the time). And then, there are also unconscious biases that we are trying to fight (and to prove incorrect). For instance, though merely anecdotal, we have seen that our women developers and data scientists are more likely to hire other women – who then turn out to perform just as well, if not better, than their male peers.

I am fortunate to be part of a company where we take diversity seriously – and where we are very much aware of the many challenges ahead of us. Our leadership team is very diverse along a lot of dimensions, especially for Latin American standards. And this is not a coincidence.

In terms of specific measures we have taken at Addi, for instance, we have adopted a parental leave that is more generous than what is legally required and that does not discriminate on the basis of gender or gender identity – or on the basis of how a person becomes a parent. What this means is that our parental leave is fundamentally the same for all of the company’s colleagues – and it is mandatory for everyone. So, everyone gets to enjoy the same benefit – and fear the same fear when leaving their job for months. We also make a conscious effort to make sure we have fair compensation bands, so that people get paid on the basis of their role, qualifications, performance, etc., not on their negotiating abilities. As far as the legal team is concerned, I am proud to say that it is fundamentally female and that it works fine. Of course, this is not a policy – I have extended offers to male colleagues. But it does warm my heart to see this as a wonderful experiment of professional sisterhood and women partnering with other women.

Unfortunately (?), there is not a rulebook to follow. However, I can think of the following ideas (which are not necessarily focused in legal):

• Find mentors and advocates and cultivate those relationships (and then be a mentor and advocate for others);
• Build networks (e.g., affinity groups) with your peers and rely on them. Welcome newcomers into these groups and be open to help people coming in – after one month you already know more than someone who is just coming in;
• Try to release yourself from the pressure of having to represent all of your minority group. Do the best you can, and do it for you;
• Find places that actually value integrity, transparency and where you can have direct, open and honest conversations – in reality, not on paper.