New York Employment Lawyer Blog

According to opponents of affirmative action, when Fortune 500 legal departments force outside counsel to hire more minorities and women, they may be violating federal anti-discrimination laws.

In a research paper released Tuesday, Curt Levey, a conservative activist who helped lead the high-profile fight against the University of Michigan's affirmative action programs, says firms may violate Title VII of the Civil Rights Act, the federal law that prohibits employment discrimination, if they give minorities special preferences in the hiring process. "Whether you are using racial preferences because your clients want you to or [because] you want to, you almost certainly are risking liability," Levey said.

Levey presented his paper Tuesday at a Washington, D.C., forum on law firm diversity sponsored by the American Enterprise Institute.

Over the last few years, Wal-Mart Stores Inc., and others have raised the stakes for outside counsel, pressing firms to increase diversity in their ranks or risk losing clients. In one case, reported in December by Corporate Counsel, a sibling publication of The American Lawyer, Wal-Mart dumped an outside firm that didn't adequately adhere to the company's diversity program.

Levey, however, argues that law firms who have responded to client demands by putting together legal teams of a particular racial composition could face discrimination suits. "Not only may a law firm be liable for discrimination, but so may be the individual employees and partners at the law firm that participated in the discriminatory decisions," writes Levey in his paper titled "The Legal Implications of Complying with Race- and Gender-based Client Preferences."

Law firms have long struggled with diversity issues. Just 5 percent of partners at firms are minorities, according to Minority Law Journal, another American Lawyer sibling. The National Association for Law Placement says that in 2006, 5 percent of partners in the nation's major firms were minorities, and women accounted for about 18 percent of big firm partners despite representing nearly half of law school graduates.