April 30, 2024

Best Practices and Encouraging a Culture of Diversity– Improving Diversity in the Legal Profession through Recruitment and Retention

Accumulated from program materials from the panelists

According to the latest data from the Bureau of Labor Statistics, 6.8% of lawyers are African American and 5.7% are Hispanic. U.S. Department of Labor, Bureau of Labor Statistics, Labor Force Statistics from the Current Population Survey (updated Jan. 25, 2023) (available at https://www.bls.gov/cps/cpsaat11.htm).

While a U.S. employer may not make an employment decision based on a candidate’s legally protected characteristic, U.S. federal law does not prohibit an employer from adopting a generalized and aspirational statement regarding the company’s commitment to diversity and inclusion, as long as the statement does not cause the employer’s decision-makers to make any specific employment decision on the basis of a protected class.

(Editor’s Note: In response to Students for Fair Admission v. Harvard, companies have re-examined DEI initiatives due to the threat of litigation in the wake of the Supreme Court’s decision striking down race-conscious college admissions, criticism of D.E.I. initiatives from some high-profile business leaders and a wave of layoffs in the tech industry that heavily affected D.E.I. teams. Goldberg, E. (2024, January 22). Facing Backlash, Some Corporate Leaders Go “Under the Radar” with D.E.I. The New York Times. https://www.nytimes.com/2024/01/22/business/diversity-backlash-fortune-500-companies.html).

Remedial Requirement

Two leading Supreme Court decisions establish that so-called affirmative action” plans are only lawful if they are based on an historical imbalance or disparity in the workforce. See Johnson v. Transp. Agency, Santa Clara Cnty., Cal., 480 U.S. 616, 632-640 (1987) (“The first issue is therefore whether consideration of the sex of applicants for . . . jobs was justified by the existence of a ‘manifest imbalance’ that reflected underrepresentation of women in ‘traditionally segregated job categories.’”) (emphasis added) (citation omitted); United Steelworkers of Am. v. Weber, 443 U.S. 193, 208 (1979) (program attributes discussed).2 Pursuant to these cases, a program is unlawful if:

  1. The program is not grounded in documented underutilization of the protected class in specific positions and in specific labor pools;
  2. The program unnecessarily trammels the rights or interests of a non-protected class employee (e.g., male, white person), by, e.g., setting aside positions for women, requiring the termination of a male employee, or barring the advancement of a man; 3.
  3. The program is not temporary in nature or seeks to maintain (rather than attain) a balanced workforce; and
  4. The program fails to be aspirational only and instead could be used to make employment decisions based solely on the protected characteristic.

Best Practices: Quotas versus Goals

U.S. courts disfavor quotas, instead, the courts favor programs similar to the one in Johnson, which set “long-range percentage goals” – something the Ninth Circuit has contrasted with “quotas.” Johnson v. Transp. Agency, Santa Clara Cnty, 770 F.2d 752, 760 (9th Cir. 1984) (“A court’s serious evaluation of a plan’s measures can settle such questions as whether it in reality uses a ‘quota’ rather than a ‘goal,’ and can establish the reasonableness of the plan with respect to non-minority employees.”). When evaluating the legality of a diversity and inclusion program, courts specifically make a “serious evaluation” of whether the program uses a “quota” or a “goal.” Johnson, 770 F.2d at 765.

The business case for diversity posits that diverse teams produce better results. Many clients want these results and want their legal provider to reflect the diversity of their employees, customers, other stakeholders and society as a whole. Mark Roellig: Why Diversity and Inclusion are Critical to the Success of Your Law Department” (paper presented at the PLI Corporate Counsel Institute, New York, NY, October 2012). The panel discussed business reasons for the inclusion of DEI plans and programs, including:

  • The right thing to do
  • Better decision and better outcomes
  • Empathy reveals Blind Spots
  • Allows the team to mirror the customer (or the opposition)
  • The business case for diversity, global and national and local
  • Meeting the need of your clients.
  • Clients are demanding diversity integration in their legal teams
  • Society changes (gender roles)
  • The laws reflect the people (sexual identity)
  • Diverse teams yield better outcomes

Law firms should incorporate diversity training, especially for new attorneys and/or law clerks to be able to appropriately interact with, better understand, and avoid offending, diverse clients. See, Sheila Corbine & Lindsey Shuler, Mistakes You’ll Never Make Again: Learning to Interact with Diverse Clientele, ABA: LAW PRACTICE TODAY (July 14, 2016) https://www.lawpracticetoday.org/article/mistakes-youll-never-make-learning-interact-diverse-clientele/.

Finally, the panel shared some do’s and don’ts of DEI programs, specifically:

Do engage in outreach efforts designed to identify and attract qualified candidates from disadvantaged groups. Find candidates with job announcements with affinity/advocacy groups, at job fairs. Offer training opportunities to support career advancement. However, Don’t make employment decisions based on race or other protected characteristics, meaning hiring or promoting someone to meet a numerical goal or creating job openings or other opportunities reserved for specific protected groups.

Do identify and correct aspects of the employment process that are hindering the selection or career advancement of disadvantaged groups. This could mean that if a selection test is having adverse impact on minority candidates, find a different test that is equally effective but has less impact. 29 C.F.R. § 1607.6A (Equal Opportunity Employment Commission, Uniform Guidelines on Employment Selection Procedures). However, Don’t apply established selection criteria in an inequitable or race-conscious manner. For example, administering a promotion test and then disregarding the results because the test did not produce the desired proportion of minority candidates. Ricci v. DeStefano, 557 U.S. 557 (2009).

Do engage in efforts to expand the pool of qualified candidates from disadvantaged groups. However, Don’t stray from choosing the most qualified candidate in every situation, regardless of race or other protected characteristic. Meaning, don’t set a “goal” that exceeds the availability of qualified candidates from a particular group.