Multiple major law firms were specifically targeted by the Trump administration and urged to drop their DEIA initiatives. Nine of the firms reached deals to avoid sanctions being imposed, promising to abandon DEIA practices, and collectively agreed to provide almost a billion dollars’ worth of pro bono work to efforts supported by the new administration.
Although four other firms successfully fought off the threatened executive orders, the overall political climate has led to a “chilling effect” on DEIA in the legal sector, with many firms abandoning DEIA programs and rewriting related policies.
Jennifer M. Martinez, partner at Hanson Bridgett LLP, notes that, although the Equal Employment Opportunity Commission (EEOC) and the Attorney General have made “various announcements about their own interpretations of federal anti-discrimination law” since the Executive Order was issued, there have been “no formally changed regulations or legislation.” However, the climate of fear engendered by the targeting of the legal sector by the administration has caused many law firms to rebrand or roll back their various DEI programs and initiatives.
Martinez argues that ultimately DEIA is good for business, with diverse and inclusive workplaces being “better at innovating and adapting to change,” resulting in greater customer satisfaction and significantly better rates of employee retention.
Jonathan Segal, partner at Duane Morris LLP, reiterates that the law has not changed and that employers were not allowed to “provide preferences based on race, sex, etc., even if the goal is to increase diversity” before or after the executive order. “What has changed is the enforcement climate” he says, including a priority of the Trump administration to “investigate and prosecute unlawful bias in the context of DEIA.”
How Are Law Firms Reacting?
Prior to the new climate, many law firms had adopted a range of DEIA measures, including a pledge to recruit for key positions from a pool made up of at least 30% underrepresented candidates in order to obtain “Mansfield certification,” a benchmark set by Diversity Lab, an organization founded in 2014 to promote more diversity in the legal sector. Martinez says that “in response to activity targeting law firms by the EEOC, many law firms withdrew their participation in Mansfield Certification” and are winding down other diversity measures.
Meanwhile, the Federal Trade Commission (FTC) sent warning letters earlier this year to 42 law firms who participated in Mansfield certification, ultimately leading to the closure of Diversity Lab. This is all despite a District Court judge mentioning in dicta that Diversity Lab’s Mansfield certification process was lawful, according to Martinez. Nevertheless, she believes that most firms have not abandoned DEIA efforts, albeit they are rebranding these programs and not publicly discussing DEIA.
Martinez argues that ultimately DEIA is good for business, with diverse and inclusive workplaces being “better at innovating and adapting to change,” resulting in greater customer satisfaction and significantly better rates of employee retention.
How Can Firms Protect Underrepresented Groups Among Their Staff or Potential Recruits?
If legal administrators focus on processes that are more equitable for everyone, this will naturally have a “beneficial impact on underrepresented groups,” according to Martinez. She provides examples of “expanding the pool of schools at which on-campus interviewing is done,” using techniques such as behavioral interviewing and training any interviewers on strategies for reducing unconscious bias as ways of organically improving diversity, without the use of explicit DEIA strategies.
Segal says that the business case “for attracting (and retaining) diverse talent has not changed,” but that the keyword is talent. He argues that legal administrators need to understand that “the goal of increasing diversity is, in fact, a problematic goal.”
Both the EEOC and Department of Justice (DOJ) have clarified that “seeking to increase diversity based on sex, race or ethnicity is not a lawful motivation” for employers. As such, law firms should seek to “increase inclusion, expand the pipeline of potential talent and remove barriers that prevent equal employment opportunity,” according to Segal. By focusing on these practices, he says that “law firms will increase the number of women and people of color in a way that is lawful.” He maintains that law firms need the talent in diverse communities, but says the key is to focus on talent.
