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May 12, 2005

Doin' the Diversity Hustle

Interesting article here regarding a coalition of law firms and Fortune 100 corporations in New York. The firms and corps have agreed that the law firms will provide the race, sex, sexual preference and so forth for all the attorneys working on any given matter. The corporations, for their part, have agreed that any legal team that isn't diverse enough - not enough women, minorities, or gays - will be fired.

There's a word for this enlightened practice: Illegal.

Title VII of the Civil Rights Act of 1964, encoded in Title 42, U.S. Code, forbids quotas under all circumstances, and forbids race and sex-based preferences in hiring except insofar as it addresses specific past wrongdoing by the company doing the hiring. The corporations *may* be able to pick their legal teams using a diversity rationale. It's tough to say, and the Civil Rights Act of 1866, Section 1981, might cause problems with respect to picking lawyers based on race. But the law firms absolutely cannot hire, pass out assignments or deny work to attorneys in their workforce on the basis of race or sex.

The companies involved include:

Bank of New York
Coca-Cola Co.
Merrill Lynch & Co.
Pitney Bowes
Prudential Securities

I am an attorney, and I intend to seek out the complete list of companies signing on to this pact, to advise my primary clients - a couple big purchasers, in fact - to stay away from them. My present clients abide by prohibitions on racial, sex, and sexual preference discrimination, whether it is invidious in intent, or benevolent as this New York agreement appears to be, and they would be somewhere beyond angry if they became aware that a supplier of goods and services was discriminating on the basis of race or sex. It doesn't matter that this is well intentioned - where the law says "no discrimination" it means no discrimination against, and no discrimination in favor of.

It's worth noting that the City of New York Bar Association, one of the signatories to the pact, tried to get the New York State Bar Examiners to issue a Black and Latino version of the New York Bar Exam a couple years ago, in order to race norm the bar exam results - in other words to ensure a percentage of attorneys by race roughly correspondent to the race of the population of New York. So they would either race norm the results, or let "disadvantaged" wannabe lawyers, aka minorities, do a six month practicum to earn their license rather than taking the Bar. Nice, huh? Good thing everybody hates lawyers, otherwise there would be outrage over this.

Posted by Blackavar at May 12, 2005 11:44 PM | TrackBack
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I agree, what an extraordinarily bad idea.

I'd like to see the complete list when you get it.

Posted by: rita at May 13, 2005 06:51 AM

Good to know. I ran the computer programs for payroll/personnel/benefits for several companies over 25 years. We used to keep this info and hide it on the files as something else because we just knew that no sooner would they tell us we could not keep the records that way than we would have to report that we did not discriminate based on the same things we could not keep records of. You were damned if you did and damned if you didn't. Just try to explain to management that you have to do a big data capture of all the personnel in the company because you suddenly had to prove you did not discriminate right after you had to go changing all the programs to eliminate the same stuff. Glad I understood just how FUBAR the government is and prepared for it.

Posted by: dick at May 13, 2005 08:28 PM

Dick, the Equal Employment Opportunity Commission is hopelessly screwy and inconsistent. During Democratic administrations, it tries to advance the law, filing enforcement actions based on what it thinks the law ought to be, rather than what it is. I have counseled a number of clients on employment discrimination matters, and when it comes to genuflecting to the altar of diversity, to put it in fancy legal colloquialisms that would cost you a few hundred bucks to hear from me, it's a Hobson's Choice. Or a Morton's Fork.

I really don't buy racial consciousness of any type, and even where it may be necessary, I think it's a necessary evil. So when I see "diversity" treated as a sacrosanct moral principle, it makes my skin crawl. Everybody's a little bigoted from time to time, it's acting on it that is wrong because it is accepting as a premise that things like skin color actually matter. Institutionalizing that premise - as if there's such a thing as "Black attorney work product" or "gay legal advice" strikes me as a compound error. Adding the sanctimonious patina of "diversity" to it simply redoubles the error. Yes, I think there's a place for real diversity - diversity of thought and talents.

We've spent the better part of the last hundred years trying to make skin color and genitalia irrelevant; our pious social gods now threaten to undo what they swore was "progress" only yesterday.

Posted by: Blackavar at May 13, 2005 10:13 PM

While I agree, as a rule of thumb I have always thought it better to keep the stuff there so I don't have to keep re-inventing the wheel. In the case of the last company where I had to do those reports, it happened to be in the same legislative district as Tip O'Neill in Charlestown. Other companies in that same area were sued by black women who applied for jobs they were not qualified for and then when they were turned down claimed it was because of race. In one case the company was put out of business because of all the legal fees.

I wanted my client to at least have a shot at keeping the government at bay by being able to back up their claims. I kept records of employees, past employees, retired employees, applicants for jobs where I had the employment department keep a comments sheet for all applicants. It just made good sense.

You are very right about the enforcement practices of the various federal departments. The problem that company had was its location in a very democratic city and in an area that was well known in Boston to be very bigoted racially speaking. I was so glad to finish that contract. They kept renewing it for 10 years until finally I got them to let me train a replacement who was an employee. After I left, so did she about a year later. Don't know what happened to them after that.

Posted by: dick at May 14, 2005 12:44 AM

Well, once Al Sharpton, Jesse Jackson, or your local Dem Member of Congress shows up with a camera crew, it's all over, even if the plaintiff was a screaming ax murderer and denied employment on those grounds. Major employment discrimination cases get tried in the mass media as much as in courts, and because we're all willing to believe the worst about the wealthy and powerful, we gladly accept the flimsiest of evidence that BigCorp is consciously racist, or worse yet, subconsciously racist. Once in a while it's true, usually it isn't, speaking strictly from my personal experience.

For most corporations, the primary duty to is to the shareholders, and secondarily to the existing employees and customers. Thus preserving corporate business and value is the top priority. Since most reasonable people will avoid a company publicly tarred as racist, any hustler willing to make that claim, whether or not the allegation is true, can extort a nice settlement. Therefore, corporations have every incentive to knuckle under, and the louder and more outrageous the claims, the more incentive there is to pay out a few tens of millions of dollars to make the claimant go away. Add in the cost of litigating class actions and major pattern and practice claims, which are generally borne by the corporation, and there's almost no reason to fight a loud, public discrimination claim. Of course in the long term, such a policy only encourages the hustlers, since it establishes precedent they can point to as they search out ever more lucrative targets.

Nothing slows down the hustlers - not their own bigoted recent past that encouraged followers to commit hate crimes (Sharpton) or proof that their efforts are corrupt and aimed at larding their own coffers (Jackson). On the one hand, as an attorney who stands to profit from this, I should cheer. On the other hand, the race hustle is usually so devoid of socially redeeming value, and so distracting from real racial problems (e.g. urban education and business issues) it's really disturbing. Basically, the better we are at handling the racial issue in the U.S., the worse the hucksters will get, since they prey on our conscience and our willingness to try and address racial problems.

Posted by: Blackavar at May 14, 2005 09:13 AM

I am currently a resident in NYC and I saw your point made very well in the 2000 elections. Sharpton made the statement that if Gore and Hillary did not come to his office in Harlem and ask him there for his support he would give it to someone else. They both showed up. I really believe that he must have been the original model for that pastor in Bonfire of the Vanities. I loathe people like that.

When are we going to really get race transparency in this country. When I hear somebody like Cosby or read someone like Sowell, I think we are gaining. Then I read the responses that call them Uncle Toms or sellouts or "wanna be whites" and go right back to despair again.

Posted by: dick at May 14, 2005 03:10 PM
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