In the summer of 2020, protests erupted across the country in the wake of the killings of George Floyd and Breonna Taylor. The protests drew attention to racial discrimination and the problem of meaningful diversity in every industry, law included. But what has happened to the pledges of Big Law firms to do better in recruiting and promoting black lawyers? Will diversity in law firms continue to improve now that the protests have ended?
When Black Lives Matter protesters took to the streets of Minneapolis, New York, and most other large cities across the country, they demanded more from the country’s biggest and most powerful industries. That included law. By early June, more than 70 Big Law firms had issued statements on racial injustice and discrimination. Perhaps the first statement issued was from Skadden Law, which said:
“As a Firm, we cannot fully live up to our core values without ensuring that Skadden continues to be a safe and welcoming place for everyone, while using our platform to combat racism.”
The firm committed to pro bono work and financial contributions to the NAACP Legal Defense Fund. Kim Koopersmith of Akin Gump concluded:
“It is hard not to feel the gulf that exists between the promise of our countries and the reality that continues to exist for people of color. I have no answers, but I do think that it is crucial that we take the time to digest events and reflect on what this says about us and how much more there is to be done to achieve the level of dignity, respect and equality that everyone deserves.”
Here at Eisenberg and Baum, we made a statement of our own, promising to advocate against racial discrimination and to listen to people of color to improve our support of the Black community going forward.
The drive to publicly denounce racism and support Black Lives Matter was strongest while people were still in the streets protesting. Nearly a year later, one of the police officers involved in his killing is on trial, reminding America that change, especially in the legal world, often takes time. Sometimes when the spotlight turns elsewhere, it can be easy to return to business as usual. Conway Ekpo, in-house counsel at a major Wall Street bank told Bloomberg Law:
“I’m not extremely confident that the Big Law industry will actually work on a diversity pipeline expansion for altruistic reasons. . . . If we want to see a paradigm shift on this issue, clients will have to literally demand that racially diverse lawyers be recruited to work on their matters and promoted at the same rates as their white counterparts.”
The most recent reports on diversity in law firms appear to bear this out. The National Association for Law Placement’s 2020 Report on Diversity in U.S. Law Firms found that only 5% of associate attorneys were Black. At the partner level, that number dropped to just 2%.
This is not a problem that is likely to resolve quickly. The American Bar Association monitors minority enrollment in ABA accredited law schools. In 2019, Black enrollment dropped by more than 4%. Fewer Black law students means the firms like Akin Gump that promised to recruit minority attorneys will have fewer candidates to fill their diversity and inclusion programs.
The disparity is especially profound for Black women, who make up less than 1% of all partners in U.S. law firms in the NALP report. Ernest Greer, co-president of Greenberg Traurig in Atlanta told Bloomberg:
“The Black male has received attention because of George Floyd. . . . The white female has had attention for maybe the last 10 or 15 years. So, what does that mean for the Black female?”
That double-discrimination could even be seen among the protests. While George Floyd’s name became synonymous with the movement, and was featured in federal legislation regulating police, Breonna Taylor needed a separate hashtag #sayhername just to be mentioned among those wrongfully killed by police misconduct.
The need for Black and POC attorneys is profound. Minorities are highly over-represented in criminal prosecutions, prisons, and as the victims of workplace discrimination. With few Black attorneys and judges in the courtroom, these individuals can feel that the government is against them. As Judge Edward M. Chen, the first Asian American appointed to the United States District Court for the Northern District of California, said:
“The case for diversity is especially compelling for the judiciary. It's the business of the courts to dispense justice fairly and administer the laws equally. It's the branch of government ultimately charged with safeguarding constitutional rights, particularly protecting the rights of vulnerable and disadvantaged minorities against encroachment by the majority.
“How can the public have confidence in such an institution if the communities it's supposed to protect are excluded from its ranks?”
Still, among all U.S. District and Court of Appeals judges, people of color make up just 27% of all active judges. Only thirteen percent of active judges are Black.
Racial discrimination in law firms can take many forms, from harassment to lack of mentorship or promotion opportunities. Many of these are illegal under Title VII of the federal Civil Rights Act and state anti-discrimination laws. Black and minority attorneys don’t have to wait for the legal industry to offer them fair treatment. They can push the industry forward through strategic litigation.
At Eisenberg & Baum, we are committed to fighting against racism, even in our own industry. Our employment discrimination attorneys can help Black lawyers and law students file racial discrimination claims against firms who pass them over because of their color. We will push for industry-wide changes and improved diversity and inclusion in the legal industry. If you have been the victim racial discrimination, contact us. We'll meet with you and help create a strategy that protects your rights and advocates for your equality.