Tuesday, March 13, 2007

Are Law Firm Reverse Discrimination Suits Around the Corner?

Aei 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.



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I'm glad you found my BLT post of interest, and thank you for commenting on my question. A few quick thoughts:

* At this point, I take no position on how these type of claims would come out under Title VII. These reverse discrimination suits can be hard to predict, as the Michigan admissions cases show. I suspect that Justice Alito may prove less accepting of the diversity rationale than was Justice O'Connor, but we'll just have to see.

* Weber and Johnson came up in the AEI discussion briefly, though the advocates for the law-firm programs didn't try to make a argument under them. It might be easier for the firms if they would admit to recent discrimination and frame their efforts as remedial programs, but I suspect they will be reluctant to do so. If the real motivation is the sort of Wal-Mart/Shell type of client demands, they find themselves stuck with the hard situation of using customer preferences to justify race-based assignments or, depending upon what they've said, the risk of their offered reasons being found pretextual.

* I think you are right that the perceived backlash is a chilling effect on Title VII suits, though that does raise questions about the effectiveness of the statute's anti-retaliation provision.

* Where I suspect the suits may first arise is when a senior associate is passed over for partner. Until then, there are good reasons for an associate not to challenge any preferences, even if he or she believes, rightly or wrongly, that race is an element in being kept off work for a big client like Wal-Mart. But once the relationship between the lawyer and firm appears over, all sorts of bitterness may erupt. Of course, by that point, claims on many of the past work assignments may well be time barred, and I would not want to be a plaintiff (let alone a lawyer plaintiff) having to rely on a continuing-violation theory.

Best wishes,

Posted by: Rob Rogers | Mar 14, 2007 11:49:19 AM

This article hits home. I am not a lawyer, but have worked my way up from receptionist to Office Administrator for a major law firm in 16 years. I have been trained and educated in all aspects of my position. Recently, a new Office Managing Partner was named, and things have deteriorated. I am a white female and he is an African American male. He has made the statement in front of my staff that he "will never hire a white secretary". There have been numerous occassions when his reverse discrimination attitude has been very apparent. He hired a secretary that was on unemployment for over 2 years. This would not be a liability, but she was much less qualified. She does not possess the cababilities that our firm needs. When he became OMP he decided that she should be my back up as Office Administrator. I explained and tried to argue the point that she did not have the qualifications and/or experience to handle the position. He did not care. He stated that he was the OMP and that was it, this is how it is. There have been a ton of incidents, (which are dialouged) but the bottom line is that he told me to "train her in all aspects of my position, because after the first of the year she will be handling everything". The point being, that reverse discrimination happens in every position, not just attorneys. Attorneys are not innocent of breaking the law. Even the highest, greatest attorney looks out for themselves. The little people, associates, administrators, paralegals, secretaries, need to look out, see the obvious and speak out. By the way, did I mention that this OMP is President of MANY diversity committees in the local area. What a joke. When will they (he) answer to his reverse (dis)beliefs?

Posted by: No Name | Dec 26, 2007 6:35:59 PM

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