Articles by Levick Experts

Reverse discrimination first became a national front-page story with the 1978 Bakke v. California Board of Regents reverse discrimination case. The crusade matured during the 1990s as anti-affirmative action litigation targeted admission policies at American law schools. Some of the same critics who’ve long decried affirmative action efforts in academia have now opened up another front, castigating diversity programs at law firms and law departments.

Chief among them are the Director of the Committee for Justice, Curt Levey, and UCLA law professor Richard Sander. They have both recently published research excoriating minority hiring initiatives that have attempted to diversify the white male-dominated professional ranks so that corporate legal employers can finally look more like the American population.

Levey, Sander and others infer that such efforts – which include the introduction of diversity committees, diversity partners, and mentoring programs – undermine hiring standards, doom minority attorneys to failure, and violate anti-discrimination laws. A recent American Enterprise Institute program further highlighted the chasm between diversity critics and proponents. Diversity proponents dismiss the studies by Levey and Sander as ideologically skewed and intellectually shoddy.

Diversity advocates say the vast majority of law firms and legal departments stop far short of breaching the Title VII provision of the Civil Rights Act and other similar statutes, while pointing to comprehensive data that show the legal profession still lags far behind other industries in minority hiring and retention.

If diversity advocates are correct, and most law firms are indeed in full compliance with employment law, there are then two choices. Firms can fight back or, as many attorneys argue, say and do nothing that will only give more public attention to the backlash. It’s a pointedly strategic communications decision facing professionals who are often averse to public communications of any sort.

What’s finally important is that law firms and their communications advisors do indeed think and act strategically without knee-jerk reactions in either direction. The goal is to strike a delicate balance; in other words, to highlight your firm’s diverse culture and minority hiring accomplishments while maintaining demonstrable compliance with Title VII and avoiding discrimination claims. 

To highlight your accomplishments:

• Identify and communicate any progress you’ve made in the recruitment, hiring, retention and business development of women and attorneys of color.
• Spotlight any examples of those minority and women attorneys who play significant leadership roles within the partnership, in the legal community, and in client-related venues.

To fend off discrimination charges:

• Audit all your firm’s collaterals. Expunge any suggestion or appearance of racial, ethnic or gender preferences on your firm’s web site or other promotional material.
• Address diversity backlash head-on. Many critics of minority hiring have axes to grind and their studies are replete with methodological flaws and logical fallacies. Point this out.

Slam the door on counter-arguments about preferences by emphasizing – in as many communications venues as possible – that the top priority is to hire the most qualified attorneys you can. Competition for top talent is fierce but, first and foremost, you’re determined to find those lawyers who best practice their craft, make rain, develop client relationships, and enhance the credibility of your firm. Everything else is tertiary.

It’s often said in a variety of ways that a lawyer’s greatest attribute is his or her reputation. Right now, there are those trying to shoot holes in the reputation of some very fine law firms. A prudent counter-offensive is in order, with the extremely attractive side benefit that you may attract some wonderful minority and women candidates in the process.