Intransigence on Diversity - The legal profession’s stance is anomalous
Twenty years ago, when I was a first-year associate in a large majority law firm, I asked a white, male colleague what the firm was doing to recruit more lawyers of color. His response was, “We hired you, didn’t we?” His unspoken assumption was that the firm had lowered its standards or made some kind of accommodation by hiring me. I calmly pointed out that my credentials were identical to those of the white associates (clerkship for a federal judge and membership on the Law Review of a top law school), and that the firm’s failure to hire me might very well have been a violation of Title VII antidiscrimination laws. I wish that I could report that we have made dramatic progress in 20 years. The 2006 American Bar Association Study on Women of Color in Law Firms found that lawyers of color continue to face these same assumptions that we are somehow less qualified, despite résumés and grade point averages that indicate otherwise.
In the legal profession today, we increasingly hear about the importance of diversity. Several organizations, such as the Corporate Counsel Women of Color and the Minority Corporate Counsel Association, are devoted to addressing the professional concerns of attorneys of color. Mainstream bar associations and legal organizations, such as the American Bar Association, the New York City Bar Association and the Practicing Law Institute, regularly convene conferences on how law firms can best achieve diversity. In spite of all the lip service, law firms continue to have difficulty retaining and promoting lawyers of color.
The lack of progress in the legal profession on the issue of diversity is anomalous when one looks at the American business community as a whole. In the larger business world, the business case for diversity is an article of faith. Given the growing diversity of this country, with people of color comprising almost one third of the U.S. population, companies recognize that their workforces must be diverse in order to secure a competitive advantage in the marketplace. Yet law firm diversity, particularly at the partner ranks, has barely budged. Only 3.8 percent of partners in majority law firms are African-American, up from about 2 percent in 1986. The 2006 ABA study revealed that women lawyers of color were marginalized in the workplace and frequently subjected to overt harassment.
The legal profession’s intransigence on diversity issues is particularly puzzling, given the fact that lawyers, more than any other profession or business, are aware of the legal prohibitions against discrimination and harassment. I would argue that part of the reason for law firms’ lack of progress is that those currently in control of America’s majority law firms have not been persuaded of the business case for diversity in the legal profession. Lawyers are in the business of selling clients their intellect, their advocacy and their diligence. If those in control of large law firms harbor subconscious (or conscious) biases that lead them to believe that African-Americans are not as intelligent, that Latinos are not well versed in English, or that Asian Americans are not as aggressive, they also will subconsciously believe that retaining lawyers of color will put them at a competitive disadvantage.
Of course, those in control of large law firms hardly have a monopoly on such thinking. From the rabidly xenophobic anti-immigrant sentiment that is widespread in our country—the appalling proliferation of nooses being hung everywhere from Jena, La., to Columbia University—there seems to be increasing intolerance toward diversity.
Fortunately, important pressure is being exerted on law firms to improve their performance on diversity from above and from below. First, Sara Lee Corp. general counsel Roderick Palmore’s “Call to Action for General Counsels,” initially issued in 2004, exhorts outside firms to increase the diversity of their lawyers and to staff client matters with more diverse teams. The thinking behind the Call to Action is that in order for businesses to be sure that they are receiving the best legal thinking, they require lawyers from a variety of backgrounds. Thus far, 116 Fortune 1000 general counsels have signed the Call to Action. Second, the Stanford University group Law Students Building a Better Profession states that part of its mission is to increase racial diversity and gender equity in law firms as one means of enhancing the legal profession. The group has introduced diversity grades ranging from A through F for law firms, based upon the firms’ diversity statistics, and is encouraging law students to consider these assessments when deciding which law firms to join. These two initiatives send the clear message to law firms that they fail to diversify their ranks at their peril. Clients and prospective employees are telling law firms that homogeneity is a disqualifying disadvantage when competing for clients or associates. Law firms that don’t retain a diverse workforce will lose business and talent. That truly would be justice.
Lisa E. Davis Esq. is a partner with the New York entertainment and media law firm of Frankfurt Kurnit Klein & Selz PC.
By Lisa E. Davis Esq.