THE CHAIR’S CORNER
Diversity Now!

By James M. Durant III

As we look carefully into the issue of “Sex and the Law,” it is hard not to take a close look into the general issue of diversity in the profession. In June 2009 former ABA President H. Thomas Wells Jr. conducted a phenomenal National Presidential Summit, “Diversity in the Legal Profession: The Next Steps,” and at the 2009 ABA Annual Meeting in August he conducted a follow-up program, “ABA Diversity Summit: The Next Step .” Building on his momentum, current ABA President Carolyn B. Lamm has created a new Presidential Diversity Commission, which will undertake a comprehensive analysis of the information collected last Bar Year to prepare a report and recommendations on the “State of Diversity in the Legal Profession: Next Steps.” The Presidential Diversity Commission is also presenting a series of distance-learning CLE programs; the General Practice, Solo and Small Firm Division (GPSolo) is taking the lead in developing the CLE webcast on “Smart Soloing: Success Strategies for Diverse Lawyers,” to be held February 5, 2010, from 12:30 pm to 2:30 pm Eastern Time (for more information, see www.abanet.org/cle).

Having participated in the June Presidential Summit, I was left with a sobering and enlightening perspective about diversity and its impact on the profession of law. The efforts by both Tommy and Carolyn provide ABA members with a sincere sense of duty and concern about the 5,000-pound diversity elephant sitting in the room.

I am convinced that if the issue of diversity is not effectively confronted within an organization, the potential for failure becomes exponentially increased. Unlike the run-of-the-mill focus group efforts we’ve seen by organizations, big and small, the ABA’s effort to support and embrace diversity in the profession is real; moreover, it is institutionalized and absolutely continual. Tommy Wells’s and Carolyn Lamm’s efforts ratified the ABA’s firm commitment under its Goal III, which calls for us to “eliminate bias and enhance diversity” in the profession and serves as a beacon of hope for those without a voice in matters of discrimination.

The GPSolo Division is equally and firmly committed to Goal III. Although the Division saw a 4 percent decline in minority participation in leadership positions from 2008 to 2009, we increased our leadership numbers from 345 in 2008 to 531 in 2009 and saw roughly an 8 percent increase in racial minority participation overall. Currently, of the four elected officers, three are members of separate racial minority groups. This is unprecedented and historic for the Division, and it is the clearest statement about our commitment to Goal III. Do we still have work to do? Of course. Although we increased the number of African American and Native American members in the Division’s leadership by more than 50 percent in 2008-2009, our Division’s leadership lost more than 50 percent of its Hispanic American members. Even so, we remain one of the few ABA entities maintaining diversity representation in every reported sub-group. Through our gateway efforts we continue to grow and groom new, talented bar leaders.

The Division is proud of the results of our Diversity Fellows Program, which grants four funded leadership positions to competitively selected candidates from diverse backgrounds. I am honored to be one of the original three members of this program, which started in 1999; Judy Toyer and Edd Vasquez are my classmates. We owe our success in GPSolo to so many. As the second African American and first active-duty military officer to chair GPSolo, I owe my position as Chair to former GPSolo Chair Wynn A. Gunderson for conceiving and breathing life into our Diversity Fellows Program, to former GPSolo Chair William T. Hogan III for serving as my mentor and sponsor, to former GPSolo Chairs Lee S. Kolczun and Dwight L. Smith for appointing me as a Division 1 Director, and to former GPSolo Chair and ABA President Karen J. Mathis for recognizing my talents and for giving me continued opportunities to lead.

And the tradition continues. For the 2009-2010 Bar Year we welcome our newest Diversity Fellows: Chauntis T. Jenkins, Ignacio Pinto-Leon, Ireneo A. Reus III, and Daniel J. Tann, who are already doing incredible work for the Division in various areas. Huge kudos to Committee Chair Richard T. Evangelista and Vice Chair Elizabeth B. Bardauskis for leading our Diversity Committee, which runs the Diversity Fellows Program. We are also exceedingly proud of our Young Lawyer Fellows Program, which offers young lawyers an opportunity to lead in GPSolo. This year we welcomed Doris L. Gruntmeir and Sarah Sharp Theophilus. We can only hope that these new GPSolo bar leaders will continue to do great things for the Division with the hope of rising to executive leadership ranks.

A bar leader recently remarked that he is “fed up” with the strong, continual plug for diversity in the ABA. Perhaps such opinions are easily forged from a lack of knowledge, a lack of accurate facts, or (in a minority of situations) from pure apathy toward equal opportunity for all to participate. Whatever the case, the world around us is changing rapidly, and diversity is core in virtually every aspect of society. In our law practices, our clients have embraced diversity and continue to do so. And diversity is not limited to just one race; it is inclusive of all people from all different walks of life. Quoting the Chair of the Division’s Nominating Committee, Alan O. Olson, “Diversity means everyone.” The reality is that this one area of our civilized world will dominate industry, education, sports, the arts, and virtually every segment of American society. We cannot ignore the truths. Last year our mantra was “Bar None.” I am firmly committed to continuing and exceeding that benchmark not only by allowing others to lead, but also by empowering and encouraging these leaders to excel to the highest levels. Now, by way of a fictional (yet realistic) account, I direct your attention to Attorney Anna Perez:

Anna Perez, a recent graduate of Howard University School of Law, sought to fill the associate opening with McGhee and Moton that was recently posted in the Denver area. McGhee and Moton is a small firm specializing in intellectual property. Anna graduated third in her class, was editor-in-chief of Howard Law Journal, and served a clerkship with a federal judge on the Ninth Circuit. Not surprisingly, Anna successfully landed the associate spot with McGhee and Moton, and during her first three years there she successfully litigated four very difficult cases and brought in 15 large clients. Anna was a superstar at McGhee and Moton. Her record of achievement continued for the next two years. In fact, Anna was assigned responsibility over three new associates.

One of her charges was Gerald Thompson. Gerald was an average attorney who owed his position at McGhee and Moton to his father’s influence as the local district’s congressional representative. Gerald graduated in the bottom 10 percent of his class and failed the bar two times. Gerald had five children, two of whom were born while he was in law school.

When an income partner position opened at McGhee and Moton, Anna was clearly the best candidate. She expressed her interest in this opportunity, and the partners advised her to apply. Gerald Thompson was obviously interested in being an income partner as well. After carefully considering their applications, the firm chose Gerald for the position. When Anna questioned the choice, Robert McGhee, the hiring partner, stated that Gerald had a family with five children and a spouse who is disabled. McGhee also said that Gerald had a better litigation track record, albeit he only had one case to his record, and besides, the firm’s largest client, the Lee Corporation, preferred to deal with male attorneys. Wanting to seem like a team player, Anna simply accepted the situation and returned to her small office. Gerald Thompson immediately received the rights and privileges of partnership, which included an annual income that was approximately $75,000 more than Anna currently earned as an associate.

What happened to Attorney Perez in the above fictitious account is more common in the real world than many would imagine. Further, this type of workplace discrimination often goes unreported for fear of reprisal or other similar professional ridicule. According to Lt. Col. Pamela Perry, a nationally known expert in alternative dispute resolution and a professor of law at the U.S. Air Force Academy, “Some women feel that their work will be recognized and rewarded, whereas some men feel more comfortable asking for just compensation, or what they perceive as just compensation for their work product” (Lt. Col. Perry’s views do not reflect the views of the Department of Defense or the Air Force). The Rockefeller Foundation in collaboration with Time magazine recently reported on statistical findings that demonstrate the harsh reality of today’s gender gap (“What Women Want Now” by Nancy Gibbs, www.time.com/time/specials/packages/article/0,28804,1930277_1930145,00.html). According to this report, by the end of 2009, women will comprise more than 50 percent of America’s workforce (as a basis of comparison, in 1972 women comprised only 36 percent of the workforce). For attorneys, in 1970 women comprised 3 percent of the profession, and in 2008 this figured had increased to 32 percent. For the medical profession, the figure was 8 percent in 1970 and 28 percent in 2008. Sadly, even with this historic change, in 2008 women netted only 77 cents for every dollar a man earned. According to the U.S. Bureau of Labor Statistics, women working 41 to 44 hours per week earn 84.6 percent of what men working similar hours earned, but women working more than 60 hours per week earned only 78.3 percent of what men earned in the same time category. Despite the evidence, some men may be unaware of the disparity. According to the Rockefeller/Time report, 60 percent of men “are convinced that there are no longer any barriers to women’s advancement in the workplace.”

As one of his first legislative acts, President Barack Obama signed into legislation the Lilly Ledbetter Fair Pay Act of 2009. This act amended Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, and it modified the operation of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973 “to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice. . . .” This act prohibits pay differentials based on gender for employees working in substantially equal jobs requiring equal skill, effort, and responsibility under similar working conditions. The Fair Pay Act permits differences in wages if the payment is based on seniority, merit, quantity, and quality of production, or a differential because of any factor other than sex. To establish a prima facia case, an employee must show that different wages are paid to employees of the opposite sex. Next, it must be shown that the employees of the opposite sex receiving higher wages and performed equal work on jobs requiring equal skill, effort, and responsibility. Last, the employee must show that the job was performed under the same circumstances.

What about lawyers wanting to sue their law firm for discriminatory practices? As you read about Anna Perez and her potential case above, I’m sure you thought about Hishon v. King & Spalding, 467 U.S. 69 (1984), wherein the petitioner, a woman lawyer, was terminated in 1979 after not making partner. She brought this action in Federal District Court under Title VII of the Civil Rights Act of 1964. Among other allegations, she claimed sex discrimination. Although she lost in District Court, she ultimately won a unanimous decision from the U.S. Supreme Court (Chief Justice Warren E. Burger delivered the opinion) making the case that law firm partners are employees and can sue for discrimination. However, because Title VII and the Americans with Disability Act exempt employers with fewer than 15 employees, the impact of this ruling on most small firms or solo practices is limited. Additionally, under Title VII, even if there are more than 15 employees, but fewer than 100, the employer can only be liable for a maximum of $50,000 in punitive and compensatory damages. Clearly there is not much bite here for real deterrence.

Small firms may be able to successfully argue that their partners are truly partners and not employees. According to “Can Law Firm Partners Sue the Firm for Employment Discrimination?” by Wayne N. Outten and Justin M. Swartz (originally appearing in The Law Journal NewslettersLaw Firm Partnership and Benefits Report from February 2004; as reprinted by Outten & Golden, LLP, at www.outtengolden.com/files/SuetheFirmforEmploymentDiscrimination.pdf), “[e]ven in small firms in which partners do not have an equal vote, or their opinions are not adopted, courts have held that the partner is not an employee as long as she has a meaningful opportunity to express her views and cast her vote.” Moreover, the Equal Employment Opportunity Commission (EEOC) in its Compliance Manual (available at www.eeoc.gov/laws/guidance/compliance.cfm) has certain criteria considered on the question of control. In the words of Outten and Swartz, the EEOC looks at “whether the individual acts independently and participates in managing the organization, or whether the individual is subject to the organization’s control.”

What is the remedy? For starters, the remedy is to not engage in discriminatory practices. Outten and Swartz recommend that law firms:

(1) take note of the low representation of women and minorities in their partnership ranks; (2) endeavor to provide mentoring, training and networking opportunities to all associates and partners without respect to gender, race, and other protected categories; (3) to the extent possible, set forth objective criteria for promotion and other benefits to limit the potential for stereotypes to influence decision making; and (4) provide training for partners on the subtle ways that stereotypes and other discrimination can affect lawyers’ careers.

Additionally, AllBusiness, in the November 11, 2009, article “Dealing with Discrimination in the Workplace” ( www.allbusiness.com/legal/laws-government-regulations-employment/11554-1.html), recommends that employers:

(1) be careful of what you say and to whom you say it; (2) respond quickly if an employee expresses concern about possible workplace discrimination; (3) educate yourself [and] stay informed about workplace discrimination; and (4) formalize the policy and the consequence.

Human resource diversity is what makes this nation strong, and it must be encouraged through education and continual dialogue. The General Practice Solo and Small Firm Division of the ABA is committed and proud to have supported the ABA’s Goal III by a record of sustained growth in the inclusion of everyone, but there will always be work to be done in this regard.

The views expressed herein do not reflect the opinion of the Department of Defense or the Department of the Air Force.

 

Copyright 2010

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