Law Firm Diversity Initiatives

Sunday, February 1, 2004 - 00:00

The leaders of the American legal profession have become genuinely
interested in improving the diversity profiles of their organizations, but
remain leery of engaging in practices that might subject them to attack for
employing quotas or other forms of unlawful reverse discrimination. This article
addresses those concerns in light of the U.S. Supreme Court decisions in
Grutter v. Bollinger, 125 S.Ct. 2325 2003 US Lexis 4800 (2003) and
Gratz v. Bollinger 123 S.Ct. 2411 2003 US Lexis 4801 (2003) [the
University of Michigan cases].

The value of diversity in higher
education, as the Supreme Court stated on June 23, 2003, is more than a campus
experience. By finding a compelling state interest for race conscious
affirmative-action programs, the Court reiterated what many corporations know -
efforts to create racial diversity are essential to the achievement of business
success. The two highly anticipated Supreme Court decisions stemmed from the
University of Michigan's admissions process at the law school and undergraduate
level. While focused on public higher education, the cases are significant for
employers because they affect the use of race - and gender - as factors in any
employer-based affirmative action and/or diversity program.

Both
decisions turned on whether the University's use of race as one factor in the
admission process was a lawful means of achieving student body diversity. The
Court determined that having a diverse student body serves a "compelling state
interest" and that as long as the University's admission policy was "narrowly
tailored" to achieve that goal, using race as a factor is constitutional. Thus,
the law school's use of race in its admission policy was intended to ensure a
"critical mass" of minorities on the campus, and is a lawful means of achieving
campus diversity. On the other hand, the undergraduate school's policy of
assigning 20 additional points to "underrepresented minorities" was the
"functional equivalent of a quota," not narrowly tailored to achieve the
compelling interest of diversity, and thus violates the equal protection
standard.

While the Michigan results have been called a split decision,
as 5 - 4 decisions go this is a decisive victory for race-conscious affirmative
action. By finding student body diversity is a compelling state interest that
can justify use of race in university admissions, the majority adopted the
rationale of Justice Powell's opinion in Regents of the University of
California v. Bakke
, 438 U.S. 265 (1978). While that standard has been the
de facto touchstone for constitutional analysis of race-conscious admissions
policies, the Grutter decision raises its status to that of a clear majority
holding of the Supreme Court.

These decisions reflect the Supreme Court's
recognition that achieving a diverse student body is not only a compelling
interest on public university campuses, but also in the business world. A
diverse student body broadens the recruitment pool for employers who seek to
increase the numbers of minorities within their workforces. The interest of
business in increasing minority representation was clearly evidenced by all of
the major corporations that filed amicus curiae briefs on behalf of the
university's affirmative action programs.

The changing demographics of
our nation are at the heart of employers' desire to create a more balanced
workforce. The U.S. Census bureau reports that the African-American population
as of mid-2001 was 36.4 million, a 1.5 percent increase since 2000, representing
12.7 percent of the population. Latinos were 37 million, increasing 4.7 percent
since 2000, representing 13 percent of the population. Census predictions
indicate that by 2030 the nation will be 19.4 percent Latino and 14.1 percent
African-American, and by 2050 24.3 percent Latino and 14.7 percent
African-American.

Also implicated in this heightened interest in
diversity is the rapid globalization of commerce over the last quarter of the
20th Century. The global marketplace is a reality. American companies now find
their customers and competitors not just down the street or across town, but
also around the world. Companies seek to prosper in this competition by
gathering the largest possible market share. Maintaining a strong diversity
posture that both reflects and returns value to the global communities they
serve is one way companies can promote market share success. The American
business community recognizes that future viability depends upon embracing and
attracting diverse markets and customers, engaging diverse suppliers and
contractors, and reflecting that diversity internally in terms of its
employees.

Affirmative action programs in universities and in corporate
America strive to create a workforce that can effectively reach and deal with
these present and future consumers, suppliers and competitors. Furthermore, as
the Supreme Court stated, the benefits of a diverse workforce are "not
theoretical but real, as major American businesses have made clear that the
skills needed in today's increasingly global marketplace can only be developed
through exposure to widely diverse people, cultures, ideas and viewpoints."


However, employers are still struggling with how to be effective in
creating a diverse workplace without using unlawful quotas to achieve that goal.
Legal employers and law firms in particular, are no less subject to these
problems than those involved in other industries.

Increasingly since the
1990s, U.S. law firms have been under pressure to address the low numbers of
women and people of color within their ranks. Much of the pressure has come from
corporate clients, which those firms depend upon to generate the legal fees that
are their lifeblood. Corporate general counsels increasingly have diversified
their in-house ranks and demanded that their outside law firms pay attention to
the issue of diversity as well. Additionally, various national and regional bar
groups, employer associations and other advocacy groups have picked up the
drumbeat calling for increased diversity in the legal profession.

In
response, nearly every major American law firm has launched diversity
initiatives. As a result, the ranks of minority and women associates increased
substantially during the 1990s, with minorities nearly doubling. Women now
account for nearly 40 percent of the attorneys in the larger firms and
minorities constitute 12.6 percent.

However, change at the partnership
level is slower in developing. A recent EEOC study found that in terms of making
partner at major law firms, white males have five times better odds than women,
four times better than Latinos and seven times better than African-Americans or
Asians. The numbers continue to lag even though the representation of women and
minorities graduating from law schools has increased substantially.

One
risk associated with affirmative action programs that involve specific goals for
the employment of minorities and women, including plans that link managers'
compensation to the achievement of these goals, is a reverse discrimination
claim. Typically in such claims, non-minority (white) or male individuals allege
that their statutory or constitutional equal protection rights have been
violated by means of a preference in employee selection for minorities or women.
While statistically these cases are rare, they have been most successful when
raised as challenges to voluntary affirmative action programs.


Generally, selecting an employee based on race or sex violates Title
VII, absent a valid affirmative action plan. A voluntary plan to address lack of
diversity may be lawful if it: 1) is designed to eliminate manifest imbalances
in traditionally segregated job categories; 2) does not unnecessarily trammel
the interests of non-minority workers or create an absolute bar to their
advancement; and 3) is a temporary measure to eliminate a manifest imbalance and
is not intended to maintain that balance. United Steel Workers v.
Weber
, 443 U.S. 193, 200-08 (1979).

If the employer is unable to
make these showings, any reliance on the plan in selecting employees violates
Title VII. Any program adopted by an employer to increase diversity within the
ranks of its workforce, if the program includes the categories of race and sex,
risks reverse-discrimination challenges by non-minority and male employees and
candidates.

The question remains, how can law firms and other employers
diversify their workforces without using unlawful quotas in employee selection
practices?

The point of clarification made in Grutter is that
race-conscious affirmative action or diversity efforts that meet the Weber
standards can withstand judicial scrutiny only so long as they are not practiced
in a purely mechanical fashion. The automatic 20 plus points the University of
Michigan granted minority undergraduate applicants was struck down in
Gratz because it was mechanically applied without looking beyond the
fact of minority status. On the other hand, the law school's analysis of
applicants in Grutter was upheld specifically because minority status
was one of many factors examined in an extensive review of each applicant's
complete portfolio of attributes and qualifications. It is this considered
analysis of the individual, including minority status, which prevailed in
Grutter while the automatic minority points were struck down in
Gratz.

Taking all of this into consideration, what courses of
action might be taken by the management of a law firm that wants to engage in
affirmative action to increase the level of diversity (i.e., the representation
of minorities and women) within its ranks?

First, the law firm employer
needs to engage in some sort of self analysis (audit or census) to assess its
current diversity situation. What is the current profile of the firm and how
does that compare with the availability of qualified law students and
experienced practitioners within the geographic area from which the firm draws
its employees? What factors have impacted on the firm's ability or inability to
attract or retain minorities or women? Once that information is known, plans can
be made to address the conditions and practices which contribute to the
shortfall.

At this point the litigators among us will generally raise the
valid points that this type of self analysis may be subject to discovery, and
should a substantial shortfall in the representation of minorities or women be
uncovered by the audit, the failure to take steps thereafter designed to correct
the shortfall could be presented as evidence of intentional discrimination in a
discrimination suit. However, this recommendation is made in full awareness of
these facts and the ramifications of the suggested actions.

In no other
aspect of running a business do consultants and counselors of management advise
their clients to operate in ignorance of the conditions which impact their
chances for success. Why should such a strategy prevail only in the area of
equal employment opportunity? Steps can be taken to limit discoverability, and
no organization should launch such an effort without good faith intentions at
its highest levels to follow through with corrective plans and
programs.

Consider the following examples:


Recruitment

• Advertize in publications for minorities
or women;

• Recruit at schools with minority or women
students, and soliciting resumes from them;

• Contact
minority and women's civic and professional organizations for
applicants;

• Participate in minority or women's job
fairs;

• Instruct recruiters to find diverse applicants, and
using recruiters that specialize in placement of qualified minorities and
women;

• Use the Internet;

• Establish
early professional contact with minorities, i.e., high school mentoring programs
and internships, college summer work and paralegal programs, first-year law
summer clerkships and hiring part time law students during the school year.


Retention

• Promote work-life balance initiatives for
all employees (flex-time, part time work, and
telecommuting);

• Institute formal mentoring programs;


• Emphasize lateral hires of experienced women and
minorities;

• Establish equal treatment programs to assure
access to work assignments, partner contact and client visibility necessary for
associates' success.

• Count diversity and EEO related
administrative activity as billable time.

Reginald E. Jones of Coudert Brothers LLP is a former
EEOC Commissioner. This information in this article is for informational
purposes only and should not be used as a substitute for the advice of legal
counsel.