Tuesday, March 13, 2007
Rob Rogers at the BLT Blog writes about yesterday's morning panel discussion at the American Enterprise Institute entitled "Are Law Firms Breaking the Law? Racial and Gender Preferences in Attorney Hiring and Promotion." He notes that to the extent that such practices are being employed to meet the expectations of clients of having a diverse group of lawyers, they appear to be suspect under Title VII and Section 1981.
A questions from Rob and a comment from me. Rob's question is:
If the legal restrictions against firms complying with demands of Wal-Mart and other clients for a certain racial make-up are as clear as argued, when are the lawsuits going to start? During my years as an employment litigator, I saw employees eager to bring Title VII claims, yet thus far law-firm associates are not suing. How long is this relatively placid situation going to last?
My comment is that I'm not sure how clear the legal restrictions are in light of voluntary affirmative actions cases like Weber and Johnson, which both provide for the permissibility of such race and gender AA plans under certain conditions. It is not clear whether those conditions can be met in the law firm context, but I think there is at least a reasonable argument.
Of course, this argument is only in play if law firms are willing to admit that they are engaging in such voluntary affirmative action programs. If not, and race and gender considerations are the motivating factor behind law firm hiring decisions on an ad hoc and irregular basis, the only thing keeping reverse discrimination suits being brought by whites and men may be the potential backlash such associates would face from other law firms as perceived troublemakers. Of course, it might also be hard to isolate race or gender as the determinative or motivating factor leading to the hiring of a given minority or female candidate in a specific instance and it would seem that both pattern and practice and disparate impact claims are not ideally suited for situations where males and whites still make up the majority of law firm employees.
In any event, as Rob hints at, with increased attention being paid to this issue by AEI and other groups, I see the incidence of such lawsuits inevitably increasing in the near future.