EVENTS

Date:	Tuesday, March 13, 2007
Time:	11:00 AM -- 12:30 PM
Location:	Wohlstetter Conference Center, Twelfth Floor, AEI 1150 Seventeenth Street, N.W., Washington, D.C. 20036

March 2007

Are Law Firms Breaking the Law? Racial and Gender Preferences in Attorney Hiring and Promotion

 

Major American corporations have recently begun to pressure their outside law firms to meet certain "diversity goals" both firm-wide and in the legal teams assigned to the company's work. In May 2005, more than sixty of the nation's top law firms signed a pact agreeing to report the race, gender, ethnicity, and sexual preference of the individual members of their legal teams to their corporate clients. This has resulted in widespread use of race and gender as factors in hiring, promotion, and work assignment decisions by America's premier law firms. Is this legal? Is it good policy? Panelists discussed these and other issues at a March 13 AEI event.

Curt Levey
Committee for Justice

Law firms believe that lower standards are the only way for minorities to succeed and for their firms to be racially diverse. The ultimate goal, however, should be a race-blind culture, where race causes no problems and does not affect the way one is viewed. This race-blind culture is not what we have today; therefore, we must enact laws that prohibit the hiring, promotion, and assignment of work due to race.

The racial bias of customers would never be overcome if businesses acquiesced to these prejudices; therefore, the idea that it is necessary to discriminate to satisfy the client is faulty. Preferences are permissible when one is trying to overcome, not maintain, a racial or gender bias. The Title VII claim for gender preference is no longer relevant in a time where more women than men attend institutions of higher education; as many women as men attend law school, and the simple fact that women are not underrepresented in the workforce is enough to render the question of gender preferences moot. Whether law firms are seeking diversity to please clients or for internal reasons, and whether or not Title VII or equal protection applies, law firms have no viable defense for preferences and discrimination.

Shirley Wilcher
Wilcher Global, LLC

It is time for the legal community to follow in the footsteps of corporate America and pay attention to issues of equal employment opportunity. Affirmative action reveals a lack of equal opportunity, and law firms must consider all barriers--entry-level through partnership. Affirmative action and discrimination have an inverse relationship in the workforce. Corporate America addressed problems with barriers at entry in work assignments, compensation, and promotions with affirmative action programs which resolved the problems of discrimination. Law firms have not done enough to promote equal opportunity.

There is a presumption that members of minorities are less competent that white males. Women, especially women of color, are discriminated against in many ways. There is a bias against having children, and women are often marginalized with menial work, denied opportunities to network with coworkers, and not given the mentoring afforded their white male peers. In order to correct these problems, law firms must assess how work is assigned and correct the problems.

Richard Sander
UCLA School of Law

There has been little research on the topic of affirmative action, and what little research exists has been dominated by ideology and agendas. When examining the racial paradox empirically, one must look at interest level, outright discrimination, more subtle stereotyping, and the credential gap. One must also note that while the credential gap is a part of the process, it is not the entire process.

There is a significant difference between white and black law students. Law schools seem to have racial goals if not explicit quotas; these goals approximate the makeup of the applicant pool. As a result, minorities enter law school less credentialed than their white counterparts. Race-norming imposes stiff costs on minorities who learn less and earn worse grades at an elite school, rather than rewarding students who attend a less prestigious institution but earn grades on par with or higher than their peers. The nature of hiring for top law firms has changed; no longer do they hire only from the top thirty law schools. Evidence shows that the problem is not in the initial hiring but in the retention of young lawyers at firms. Attrition rates among minorities are high. This problem points to something much larger: it seems that there are different standards being applied to minorities. One must not only ask if this makes sense, but also whether these preferential policies are in minorities' best interest.

Michele Roberts
Akin Gump

There is a substantial attrition problem with black lawyers. The problem is not because they are ill-equipped, but rather because both covert and overt discrimination remains in law firms. The Minority Corporate Counsel Association conducted a survey of 1,833 partners in large law firms and discovered that only 48.2 percent of all respondents attended top-ten law schools, while out of the minority respondents 83.3 percent attended top-ten law schools and 70 percent attended top-five schools. Going further, only 25.9 percent of all respondents graduated with honors, 13.9 held a clerkship, and only 8.7 percent were members of the Order of the Coif. While no firm wants to hire a C-average student, when it comes time to promote within the law firm, no one looks at GPA; the firm evaluates ability.

To be promoted, one must be given the kind of work that gives the requisite experience. When black associates walk into major law firms, they are not given access to this kind of work. Women associates are treated similarly and denied the same work that is given to white males. Neither group is given the mentoring and training needed to grow intellectually because of the unspoken discrimination that remains. 

AEI intern Jordan Chapman prepared this summary.