Was it the snub heard ’round the world?
At a conference earlier this year, one speaker told the crowd that his former company, McKesson Corp., had cut a prominent firm out of the bidding for its legal work.
Though Arthur says he didn’t name the firm, he did explain his reason to the audience: “It had been highlighted in a legal magazine for having [more black partners than average].”
Arthur was followed on stage by Wal-Mart General Counsel Thomas Mars, who, Arthur and others say, told the audience: “I know who that firm is, and I am going to speak to them.”
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As for Arthur, making business decisions based on diversity just makes good sense, he said. “Law firms exist to please and serve clients,” he said.
Outrageous that a client would give or take away business based on the completely irrelevant skin color of its attorneys, no?
Excuse me, I misquoted the adjectives in the story: the McKesson attorney, Arthur Chong, was complaining that the law firm had too many white partners. Which is apparently so unnotable that an entire article in The Recorder about Chong’s speech does not speak to or raise the point that his statement was appalling. (Kellie Schmitt, “Corporate Diversity Demands Put Pressure on Outside Counsel”, The Recorder, Dec. 28). Stories like this put the lie to any claim that African-American participation in big law firms is hindered by racism; if anything, law firms are forced by this socially-accepted racism to compete against one another to recruit and retain the few African-American attorneys out there, because clients apparently value the sneetches with the stars on their bellies more than sneetches who are merely the best lawyers, and shareholders tolerate this dissipation of value. (And welcome, WSJ Law blog readers, where there is a big debate in the comments.)
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Hey, let them. The marketplace will punish them for not persuing the best, right? At least, that’s what I’ve been hearing for some time now about meritocracy and race. (Sure, ficundiary duty to shareholders may be an issue, but that offers many white attorneys an opportunity to sue on the shareholder’s behalf. )
My only comment here is to point out something of an observation more so about capitalism than law. “Law firms exist to please and serve clients,” is not truly the case. Law firms exist to make money for the partners and/or investors. Serving and pleasing clients is merely the vehicle by which this end is achieved.
fishbane,
The argument FOR affirmative action was that that was not the case.
As usual, racism is not at all dead… it’s just switched sides.
Ted is right to note that what’s shocking is how nonplussed the legal media is about all this. Their lack of outrage is an outrage. Imagine a complaint about a too-black firm, indeed. Usually political correctness tries a bit more tact; this is just raw headcounting that, not that anyone cares, runs directly counter to the whole “race shouldn’t matter” idea.
Of course, there’s nothing illegal about this business that I can see. A client or customer is free to patronize a law firm, doctor or any other service on grounds including (and even exclusively) race. It’s certain other commercial settings where this is forbidden (housing, employment, and the service side of most transactions, i.e., you can freely say you won’t go to the Barbecue Shack because it’s run by whites, but the Barbecue Shack can’t refuse to serve you because you’re white).
But is this complicated by the business-to-business angle? Could a white law firm have a civil rights complaint that they were dumped by Wal-Mart because of race? Probably not, but I doubt it would be pursued. The white lawyers would just shuffle along with slumped shoulders, resigned to their new status as social punching bags, and well aware that any complaint would get them tagged as a racist.
I wonder to what extent such a client’s law firm’s employees might protest, however. For example, it’s pretty clear that an employer can be liable for failing to protect employees from clients’ sexual harassment.
A qualified white or Jewish attorney plaintiff, however, would almost certainly be worse off for suing in such an instance; the disruption to his career from a lawsuit would outweigh the chances that he could get equal enforcement of the law.
“the disruption to his career from a lawsuit would outweigh the chances that he could get equal enforcement of the law.”
Isn’t that a fair statement about anyone who brings a discrimination lawsuit? It’s not like they’re the easiest and most pleasant things in the world… all sorts of allegations about work performance, etc. will be made about the plaintiff.
I’m sure it’s only a matter of time before a white person sues over racial discrimination, and I for one will be very interested in how it plays out.
Actually, forcing law firms to hire unqualified minorities is probably in the public interest. If nothing else it will put them on par with the same hiring practices as the State Attorny Generals offices and will save the taxpayers money in awards.
Not new news.
Isn’t that a fair statement about anyone who brings a discrimination lawsuit?
No. An office- or factory-worker with readily fungible skills and a larger universe of potential employers is better situated in terms of expected costs, benefits, and risks.
“An office- or factory-worker with readily fungible skills and a larger universe of potential employers is better situated in terms of expected costs, benefits, and risks.”
Yes and no. On the one hand, there are probably more jobs available. But I don’t think it ever impresses a potential employer to answer the question of why you left your last job with, “Because I initiated a lawsuit against them. Do you mind if I use my sick days for depositions?”
I just disagree that a white or Jewish plaintiff would be any worse off than any other race if he or she brought a suit as compared to a minority.
I didn’t say the plaintiff in such a case is more poorly situated because they are a white or a Jew. I said they are more poorly situated because they have higher opportunity costs, more specialized skills that are less readily transferable, and are operating in a partnership environment and in a very small universe.
“I’m sure it’s only a matter of time before a white person sues over racial discrimination, and I for one will be very interested in how it plays out.”
Justinian, do you mean, in this particular fact setting (firing a too-white law firm), or in general? Because in general, there have been many successful “reverse discrimination” in employment cases. They’re successful because the climate of political correctness emboldens employers to do things that are, in retrospect, flatly illegal — yet employers are so proud of themselves for promoting “diversity”, they’ll openly boast about what they’re doing. That makes discovery a little easier, I imagine. Look at Wal-Mart here… they’re BRAGGING about firing “too-white” law firms.
As for the lawyer/law firm/law office setting, I don’t know. (I personally know of prominent government-side legal offices that very aggressively discriminate against whites.) But I suspect that the ease-of-making-the-case conditions I discuss above are even better there: the legal community figures, hey, we’re all lawyers here, so we can do what we want (see the ABA’s ridiculous actions in this regard). Only to find out that, no, you can’t.
Ted – Thanks for clarifying your position. I definitely agree with you about higher opportunity costs and specialized skills.
David – I should have been clearer; I was referring to fact patterns such as these, in which a customer fires a vendor for being too white. I said vendor, but isn’t this phenomenon occuring mostly to law firms? I mean, is anyone firing their account or electrical contractor for not being diverse enough?
Personally, if I ever need a lawyer, I’ll be looking at his or her track record, not skin color.
I mean, is anyone firing their account or electrical contractor for not being diverse enough?
I’m not completely familiar with the status of contractor and subcontractor minority set-asides in 2006, but I don’t think the issue has gone completely away, despite the Supreme Court’s command in Adarand.