Activist: Diversity Efforts Are Discriminatory

Ross Todd, American Lawyer, March 14, 2007

Attempts by Fortune 500 legal departments to force outside counsel to hire more minorities and women may tempt law firms to violate federal antidiscrimination laws, an affirmative action foe says.

In a research paper released Tuesday, Curt Levey, a conservative activist who helped lead the high-profile fight against the University of Michigan’s affirmative action programs, says firms may violate Title VII of the Civil Rights Act, the federal law that prohibits employment discrimination, if they give minorities special preferences in the hiring process. “Whether you are using racial preferences because your clients want you to or [because] you want to, you almost certainly are risking liability,” Levey said.

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Over the last few years, Wal-Mart Stores, Inc., and others have raised the stakes for outside counsel, pressing firms to increase diversity in their ranks or risk losing clients. In one case, reported in December by Corporate Counsel, a sibling publication of The American Lawyer, Wal-Mart dumped an outside firm that didn’t adequately adhere to the company’s diversity program.

Levey, however, argues that law firms who have responded to client demands by putting together legal teams of a particular racial composition could face discrimination suits. “Not only may a law firm be liable for discrimination, but so may be the individual employees and partners at the law firm that participated in the discriminatory decisions,” writes Levey in his paper titled “The Legal Implications of Complying with Race- and Gender-based Client Preferences.”

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Levey’s report builds on the work of Richard Sander, a UCLA law professor whose research suggests that law firm diversity efforts are often counterproductive as minority lawyers with “radically different credentials” than their colleagues are recruited to elite firms. Sander was on hand at Tuesday’s forum and praised Levey’s findings. “I think Curt is right and [using racial preferences] is an illegal part of the process.”

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Akin Gump Strauss Hauer & Feld partner Michelle Roberts criticized Sander’s findings that corporate firms hire minorities who have lower grades on average than white associates. Roberts said because of the wide-ranging size and culture at the firms in Sander’s data, the professor’s study compared “apples and oranges, bananas and bowling balls.” She responded to Sander’s assertion that elite law firms are recruiting minority associates with inadequate credentials, saying that she has worked hard to convince her partners that they are not bringing in “mediocre affirmative action babies.” “We pay [associates] too much already,” she said. “It doesn’t make sense to bring in people who can’t compete.”

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[Editor’s Note: A PDF of “The Legal Implications of Complying with Race and Gender-Based Client Preferences,” by  Curt A. Levey, can be read here.

“The Racial Paradox of the Corporate Law Firm,” by  Richard H. Sander, can be read here.

PDFs of both articles can be downloaded here.]

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