Aren't any of these attorneys concerned with the fact that employment quotas, well-intentioned or not, are clearly illegal?

Quotes from the article:
Over the years, Newton said, the task force decided to urge a hard-number numerical commitment.

"No more data collection," she told the press conference. "The need is manifest."

"Years of silence and discomfort have taken their toll," said Michele Coleman Mayes, senior vice president and general counsel for Pitney Bowes. She quoted Charles Barkley, author of "Who's Afraid of a Large Black Man?" and a former National Basketball Association star, by adding, "Prejudice just kills all of us little by little."

Firm partners attending the press conference indicated that the agreement's strength was in making use of the competitive nature of the legal industry. The numbers of minority lawyers on legal teams as a means of demonstrating commitment to diversity might well become a competitive marker in standard firm surveys, they said.

"And if your numbers don't add up," Mayes warned, "you're history."

This story about Holland &Knight seems relevant, too:
Holland &Knight adds diversity training

This presents some interesting law school exam questions in the advanced Employment Law Seminar.

What if the employee never reveals his/her sexual preference? What if the employee reveals only part of his/her preference? What if the employee doesn't want his/her sexual preference revealed? Does a "switch hitter" get extra credit?

This looks like fertile ground for employment discrimination litigation against both the client and the compliant lawfirm.

Notice that age is not a criterion measured.

Hmmmm. Legalized, overt enabling of discrimination. This would be a good issue on which to call out our legislators. Then we'd see who REALLY believes in "nondiscrimination"

Actually, this is scary (sorry for restating the obvious... been a long day).

Countertop: It may be regional and it may vary by firm, but lots of associates are out of the closet in law firms.

Well the obvious has been broached already but I'll second it. Not that anyone would for fear of the publicity fall out, but what if a client asked for nothing but straigtht white guys and fired the firm if they found out a gay man had worked on their account?

Isn't the basic information regarding law firm and partner composition already being tracked by big firms for the recruitment purposes? What more do clients really need to know?
more here

Guess clients are no longer interested in IQ, LSAT scores, Law Reviews, Years of Practice, Notable Cases, Knowledge of the subject, or other mundane items. What's next? Religion (none of those), Height (taller the better), Hair Color (no dumb blondes), Birth Signs (for compatibility, of course), White Teeth (brilliance of a different sort). Think of the inroads the mediocre among us can now make. That must be it! An egalitarian approach.

It's interesting, but hardly surprising, that most people seem to assume that clients want this information so that they can insist on having more women; more blacks, hispanics and asians; more gays, lesbians, bisexual and transgendered lawyers working on their accounts. One has to wonder what the reaction will be when some clients begin displaying a preference for straight white males. While I personally believe they are (or at least should be) perfectly free to do so, I'd strongly prefer any company in which I had money invested be infinitely more concerned with the qualifications and performance of their legal representatives. Both the bigots and the PC crowd are equally deserving of ridicule and disdain from my persepective.

Not being knowledgeable enough about employment law to comment on the legality of the diversity system itself, a comment about the nature of legal practices will have to suffice.

I wonder if clients will impose this new diversity desire on all projects, or just certain large litigation and corporate projects, given that in certain practice areas (tax comes to mind, most notably), there is a dearth of minority attorneys, generally by choice rather than by discrimination. (Of course, this also may simply reflect the general lack of minorities at law firms in general.)

Seems to me that a client would want the best associates to work on its case, regardless of sex, orientation, etc.

Worry not, unindicted co-conspirators. Have faith in Capitalism. No client can be that stupid.

Either that, or I am coming out of the closet soon, as a repressed homosexual, who, for religious reasons, and in order to please Mom, bravely chooses to marry and have 2 kids :)

Will the law schools that refuse to allow the military to recruit because it discriminates now also ban law firms that have signed an illegal quota agreement?

Most likely it will be the opposite, if you haven't signed on, you will be banned.

My firm sends out a request for racial info once a year for NALP purposes with a list of categories. There is no category for Caucasian. I usually want to reply, "I would like to respond to this request, but there is no category for my race and I'm quite certain it wasn't omitted because of its rarity." But in the end, I just don't reply.

What happens if a client gets what he considers poor service, and he demands to see the diversity index. He then discovers that under this system he was assigned "diverse" team of attorneys, while on previous matters he had almost entirely white males. Can the client insist that the firm reassign white males to his matters? If the firm refuses to reassign the white males to his matters, can he fire the firm, or would he get sued for discrimination? If the firm agrees to reassign them, do the reassigned lawyers sue their own firm?

now, assume that the reason there's a dearth of minority lawyers at major law firms is that there is a death of minority law students at the top law schools from which those firms recruit. then, the client who had poor quality service demands to know what law schools the attorneys who worked on his matter graduated from. what if he then insists that only graduates of top law schools can work on his matters? that would lead to a decline in diversity. if the firm refuses, can the client fire the firm or would he be sued? what would the firm do? if reassigned, would the diverse associates be able to sue? the firm or the client?

I'm reminded of a great scene in the movie Stripes. The army recruiter signing up Bill Murray and Harold Ramis asks, "Are you gay?" To which Murray earnestly volunteers, "No, but we could change."

cathy :-)

In their desire for business, New York law firms may instead be opening themselves up to a lawsuit. A firm that assigns a team of lawyers whose “numbers don’t add up” will be “history,” says Michele Coleman Mayes, the General Counsel of Pitney Bowes.

That sounds an awful lot like a quota. But the Third Circuit, which has jurisdiction over the New Jersey offices of New York firms, has already said in the famous Taxman case that it is illegal under Title VII to consider race at all – much less use quotas -- to promote workplace “diversity,” in the absence of a "manifest" imbalance between the firm's workforce and the qualified labor pool. Individuals who pressure firms to engage in race discrimination can be sued under 42 U.S.C. 1981 and the New York Human Rights Law, which forbids anyone to “aid, abet, incite, or compel” employment discrimination.

Judge Newton, head of the New York County Bar Association’s Task Force on Diversity, argued that the deal was needed for a “hard-number numerical commitment.” But a quota isn’t immune from suit just because a judge or bar association approves it. Delaware’s bar association and supreme court found that out years ago, when they were sued for a race-based summer program for minority law students.

They may also be bad for business. Pitney Bowes, whose current general counsel has made “diversity” such a priority, has been outperformed by the Dow Jones Industrial Average over the last six years, as have most of the companies that filed amicus briefs in favor of affirmative action in the Supreme Court in the University of Michigan case.

Inside a law firm, divvying up assignments based on race and sex will fail Title VII tests - unless "representation" is treated like the "minority government contractor" sham, in which a minority, woman, or disabled veteran is commonly granted a very small ownership share in BigCo, in order to meet minimum requirements and win contracting preferences.

Firing a law firm for being insufficiently Black, or Latino,(or even White, God forbid) could be construed as a violation of Section 1983, which prohibits interference with the right of contract based on race or color.

The sexual preference claims would be trickier, depending on the language of state laws prohibiting discrimination on the basis of sexual preference. If they neutrally prohibit sexual discrimination, then a "reverse discrimination" would be possible, but if they are construed only to protect gays, then a reverse discrimination claim would not work.

This is great because it increases the level of information in the market so I can do better with my stock picks. All I have to do is find out which moron companies are these clients insisting on this quota policy, then I will sell that stock because those companies are going to Heck in a handbasket.

Bracket-creep. Historically, diversity quotas started with jobs that were considered unskilled. Does anyone remember the American Lawyer article about Cravath pro bono lawyers sneering at the Birmingham Alabama fire department's protest (the department and Cravath were both overwhelmingly white and male) that the firefighter test, which had a disparate impact, really measured a legitimate job-related ability - unlike, of course, whatever criteria Cravath used in its own hiring decisions?

A modest proposal: every proponent of diversity-trumps-quality for legal services must apply exactly the same standards in selecting his own, and his family's, provider of medical services, especially specialists for one-off procedures like brain surgery and liver transplants. I understand that medical schools have been under the same pressure to diversify as have law schools, so that there are now plenty of minority brain surgeons and transplant doctors. It would be bad form to ask, and impossible to believe that anyone would care, whether diverse doctors were admitted to medical school under Bollinger criteria. An additional benefit of this proposal is that it would allow the proponents to display their virtue in relation to actions that affect themselves, rather than, much less impressively, in relation to actions that affect only others.

Calvin Trillin joked that there was no reason not to choose a Jewish internist - but why take a chance? In five years that joke will be actionable.

As an arab-american, I find it frustrating that traditional ethnicity reports do not specify arab or middle eastern descent, they just lump it together with caucasians. My "visual" is hispanic or south asian.

As a Christian, it's even more frustrating, once identified as Arab, to be presumed Muslim.

To top it all off, with a gender-neutral name (by American standards), you are keenly aware of just how much emphasis many clients in the real-world place on having a man handle their case - all other qualifications being equal. They have to be, they're mine. The only difference is they found out I'm a woman.

Does discrimination exist? Yes. Is reverse discrimination the answer? I wish it weren't. No matter which side you're on, if you're a female or minority (and especially a minority female) as much as you want to believe qualifications are all that matter, in many parts of country, they're not.

Why does the Supreme Court grant us a right to privacy that makes sexual orientation legally irrelevant, but law firms (and their clients) need to know who you like to bonk?

Of course you could lie - but everything else besides sexual orientation is pretty innate (ok, for some/many sexual orientation is innate - but not for all). But then you would have Ward Churchill, who appears to have lied to get hired, tenure, etc., and is now using that tenure to argue that he can't be fired.

I'm interested in knowing how they propose to determine if people are gay. I work in a large NYC firm - almost certainly one of the signatories. We are asked about - and the firm keeps records of - race and gender. But not, to my knowledge, sexual preference (at least, I don't ever remember being asked, and I don't believe it shows up as a category when we get the once-a-year Powerpoint presentation on diversity at the firm retreat).

So are they going to have to ask everyone in the firm if they are gay? Yikes.

The sad irony here is that real diversity - a diversity of talent, of thought processes, backgrounds (this includes Okies as well as ghetto kids) probably does add a lot of value to a law firm, especially to a "public policy" oriented law firm like a lobbying shop or a government legal office. But actual diversity isn't what's sought here. It's pretty clear that quotas are the order of the day with this plan.

You would think that the prohibition on quotas would suffice to preclude this program. The Supreme Court's ruling in the University of Michigan affirmative action cases, Gratz and Grutter, dealing with policies that were also premised on diversity, found that a student body that was constant at 15% blacks, no matter what the applicant pool looked like from year to year, did not comprise a quota system. Perhaps that is what the NY lawyers are hanging their rainbow colored tophat on.

Another non-lawyer comment:

what kind of sample sizes are we talking about here? if you had purely gender-blind random selection of lawyers working on a case, with 2-person teams half the teams will be single gender. if the balance of attributes isn't 50-50, it gets worse...

from a mathematical basis alone it makes no sense to report this data with very fine granularity because individual clients will be outlyers just based on laws of probability.

I can see the benefits. Legal ethics rules that command lawyers to represent zealously any client notwithstanding, an oil company might feel safer represented by a pro-business libertarian than an unrepentant Marxist. It isn't a bridge too far to imagine a client feeling safer with a female lawyer to engender sympathy in a jury trial involving drug-induced birth defects, a minority lawyer in a racially-charged matter, or a gay person in a novel discrimination case. Choosing lead counsel carefully can serve as both a sword and a shield, either minimizing a bad impression (ten old white guys representing Big Tobacco looks worse than a Benetton advert at the defense table) or maximizing a good one (man seeking to help battered women).

I'm not so sure that the proposal monitoring will lead to funneling work to unqualified lawyers: the presumption is that if a given group of lawyers beat out others in competition on the LSAT, entry into law school, grades at law school, acquring honors like Moot Court and journal experience, and job interviews with big firms, then they already ARE qualified. Monitoring the allocation of work at firms, then, would not incentivize funneling work from qualified lawyers to unqualified lawyers, but from qualified white heterosexual males to qualified other kinds of people. That sounds fair, and prevents stagnation or ghettoization. Imagine if you are a female lawyer who does not want to specialize in employment discrimination or a black lawyer who does not want to specialize in civil rights cases, but your firm keeps you out of all the antitrust and bankruptcy litigation it does. The firm suffers and the personal careers of those lawyers suffer, because qualified lawyers are being underutilized due to how their appearances discount their skill set in the politics of work assignment within their firm. In that sense, the policy will encourage efficient use of resources (workers).

But it's not all roses. That a black lawyer would not be chosen to represent his firm in a case tried in a traditional Southern town may be sensible trial strategy, but it's also discrimination against him. My problem with this proposal is that it isn't just about appearances, it's actually about allocation of work. The problem, as I see it, is that it adds to the marketplace a statistic that can be misinterpreted by clients, and I one could reasonably predict improper allocation of work to rig the numbers. In the case of a female lawyer who likes employment discrimination and hopes to specialize in it being forced to work on bankruptcy restructuring, it seems that her personal career goals have been subordinated into the generalized demand of clients at-large to have a perfect distribution of female lawyers across all fields of legal practice. I'm not sure if that is justified.

As for the benefits of diversity, it is quite true that geographical diversity, racial diversity, diversity of alma mater, gender diversity, political/philosophical diversity, and sexual orientation diversity is useful in a legal culture. While it is not necessarily true that you will get any particular opinion out of any particular kind of person, the chance of intersubjective disagreement rises significantly when you have as diverse a mix as possible. The benefit is obvious. If you're trying a case that you want to win, having as many different perspectives on it as possible is useful to framing an argument capable of persuading as many people as possible. It's about winning.

I don't expect too much of this reporting to be accurate, and I actually hope that it is not.

There are reasons for partners on particular matters to omit or lie about the diversity numbers that have nothing to do with discrimination. In fact, the diversity reporting could conceivably lead partners to rely more heavily than they already do on associates with sex and ethnicity profiles that match their own to help them obscure the fact that the partner isn't putting in as many hours himself on a client's matters as he wants the client to believe.

If the associates staffed on something are a different sex or ethnicity from the partner on the matter, then clients could tell from the diversity break-down that the partner didn't do jack, except call the client on the phone and present what the associate sitting in front of him just told him.

Try picturing this on a real bill:

"For services rendered, $XXX,XXX.*
[Firm Name]

"The hours worked were 30% female, 30% black, 70% asian" (figure that one out. OK, OK, black female assiciate, asian male senior assiciate, white partner.)

Can't report no white hours, because the client knows the partner is white. Better get a white associate on the deal to disguise the ratio of assicate to partner hours. So what if this white guy the partner picks to be his stand-in for this diversity reporting gets much more exposure and training than any of the assiciates who are different from him? He'll call him his mentee. Don't they keep telling him that he has to mentor somebody anyway? Kill two birds with one stone. And when it comes time to make partnership decisions, of course the guy with the best experience is going to get the promotion. That just makes sense. Probably, the other assiciates have already seen the writing on the wall and have left the firm by that point anyway -- can't promote minorities if they're not around to be considered!

Therefore, in real life situations like the scenario above, this reporting requirement could have the perverse effect of decreasing diversity at law firms, increasing racial and sexual animosities in the workplace, and generally making law firms even worse places to work than they are now, for everyone. Is that what these people want?

sorry, realized the non-sequitor b/w personal income tax and the parol evidence rule. long weeks lead to brainless weekends, but you all get the point. whether property or contracts or income tax or torts, the point is the extent to which one understands the foundational doctrines of law.

What continually amazes me is how this, and other policies propagated by the so-called "progressives" (ex. speech codes on campus) seem to be straight out of George Orwell's "1984". These same "progressives" are all too often the first ones to accuse those on the conservative side of implementing tactics out of the novel.

While I am no legal expert, I did have the honor of taking a constitutional law class during my college junior year at the same time as Judge Robert Bork was in the nomination process. I've always found the field extremely fascinating and I am very concerned by efforts by some to read into the Constitution what they wish were there based on their feelings of what is right.

I wonder if we will see an effort by some individuals or groups to challenge this directly in court, or through another covert method. Say submitting various resumes to the respective law firms from "applicants" of varying ethnicities, gender, or sexual orientation in order to root out any bias in interviewing or hiring.

If I may ask for some feedback, can anyone point me to any specific cases, if any, involving the 1964 Civil Rights Act where the Supreme Court or lower courts held that racial, or other quotas were mandated by the law?

As a current law student I do have to admit that I'm quite concerned about how this information will be used. It's one thing to know the diversity of a firm as a whole, but an individual project? Is there meaningful data available for a 5-person team? Would it be surprising to have a 5-person team that didn't have any black or gay billable hours? Does this count for paralegals and support staff as well? Very strange business decision if you ask me.

Um. "It all balances out" is not the same as "equality." You might want to let that argument go.

The medical doctor comments are right on.

The lunacy that is modern USA political correctness will lead to our downfall. We are now about 85 to 90% towards being the [former] Roman Empire. And we will fall, make no mistake.

This craziness is just plain dangerous and bad for public safety. It is a common FACT, whether you la-la land livers like it or not, that the comment re the failing black doctor getting a B happens not merely regularly but ROUTINELY. They fail, cannot do the job, have IQs less than 90, but nevertheless are GIVEN Bs or otherwise passed, and are out here practicing law, medicine, architecture, engineering, etc. The bar exam and I'm sure the medical exam contains a hidden (this is conspiracy theory stuff, I know) "system" that passes certain peoples based on a quota/different grading standard.

It is scary. It will kill us, and in the meantime it kills us slowly and with pain due to the economic and morale impacts.