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Op-Ed: Hiring practices can counter implicit bias, systemic racism

By Khalilah Spencer, BridgeTower Media Newswires

In 2020, as the world was essentially paused during this pandemic, it was hard to ignore the persistent reminders of police brutality and other health and economic racial inequities compounded by COVID-19.

In response, many corporations called for change and took on responsibility for their role in addressing racial and social justice issues. Now, many in-house counsel departments are re-evaluating their outside counsels’ diversity commitments.

Recently, Coca-Cola Company’s General Counsel Bradley Gayton, formerly of Ford Motor Company, wrote a letter to outside counsel with specific diversity and inclusion demands.

In the Jan. 28 letter, Gayton frankly pointed out that diversity scorecards, summits, action plans and committees that were meant to drive meaningful change simply “are not working.”

Among the changes that are sought: Law firms must provide self-identified diversity data on a quarterly basis for the teams working on the company’s matters. At least 30 percent of the associate and partner time on Coca-Cola’s new matters must be from diverse lawyers and at least half from Black attorneys (according to Coca-Cola).

These percentage requirements are based on U.S. Census population data. If firms fail to meet these diversity requirements for two consecutive quarters, Coca-Cola will cut 30 percent from the firm’s fees for new matters going forward until the commitment is met. Continued failure could lead to losing Coca-Cola as a client.

Firms also will have to be transparent about how origination credit is awarded and identify at least two diverse attorneys as potential successor partners for the company’s book of business.

Additionally, Coca-Cola has made pledges to participate in its own diverse initiatives, including the Move the Needle Fund, the Mansfield Rule and Pipeline Parity Certification.  These programs are geared to increase the pool of diverse lawyers both internally and for outside counsel roles.

Coca-Cola is not alone, however, as several companies have been holding their outside legal firms accountable to specific diversity guidelines for decades. While some of the more recent shifts are notable and important, these demands will continue to be difficult for law firms to meet — although the United States is growing more diverse, the legal profession continues to fall short.

Pipelining and mentoring talent

Law firms and the greater business community at large must carefully examine hiring practices, career mentoring, scholarship programs and other measures to counter implicit bias and systemic racism.

Per the American Bar Association’s 2020 Profile of the Legal Profession, nearly all population groups of people of color are underrepresented in the legal profession. Despite being approximately 60 percent of the U.S. population, white non-Hispanic lawyers make up about 86 percent of the nation’s lawyers.

Based on the National Association of Law Placement’s 2020 Report on Diversity at U.S. Law Firms released in February, people of color account for 17.95 percent of total lawyers at law firms and 36.48 percent of summer associates nationally.

Retention of diverse attorneys is key. But due to the limited pool of readily available diverse talent, law firm leaders who compete for corporate legal work also will need to be more intentional in their pipeline and recruitment efforts. There is a need to make both short-term and long-term investments to create more opportunities for young, diverse students to look at law as a career option.

Pipeline programs geared to increasing minority participation and even high school mock trial and oral advocacy competitions make an incremental impact because they introduce students to law and the legal profession.

Recruiting diverse candidates

Law firm internships also work to introduce high school and college students to the legal profession and day-to-day operations of a law firm. However, given the overwhelming costs associated with both undergraduate and law school attendance, law school scholarships need to play a bigger part in assisting minority students who often cannot afford law school and end up having larger debt burdens than their white counterparts.

To stay competitive when new diversity metrics are tied to national census data, like those of Coca-Cola, law firms may need to look to minority 1L summer associate hiring to get the first crack at recruiting diverse talent from law schools. In addition, tracking diverse law student and lateral candidates through the recruitment process is key to gaining and maintaining the critical mass necessary to be able to effectively staff matters with diverse attorneys.

Law firms also need to be more intentional to meet diverse candidates where they are, like minority job fairs and affinity networks and conferences. Insisting on diverse candidate pools when working with headhunters is also necessary.

More importantly, law firms need to address the implicit bias in their own internal recruitment process. Reducing pedigree bias — where lawyers exhibit unconscious bias towards elite backgrounds, law schools and profiles they’re familiar and comfortable with — is important when evaluating potential diverse candidates. Also key is reducing referral hiring that simply compounds the lack of diversity in an organization by hiring from non-diverse attorneys’ social networks.

Notwithstanding these efforts, law firms are businesses and are capable of doing only so much. Structural and systemic racism are the primary reasons why minorities are persistently underrepresented in the legal professions. How do you meet a demand for 15 percent Black attorneys on your clients’ matters when Black attorneys are only 5-6 percent of the total lawyers in the U.S.?

Societal issues such as educational inequity, economic disparities and implicit bias need to be addressed before any significant gains for diversity are visible. It will take all of us, collectively, to address these persistent racial inequities before the legal profession mirrors the diversity of our nation.

Khalilah V. Spencer serves as inclusion, equity and social responsibility partner and is a partner in the litigation department of the Detroit office of Honigman.