A Primer on Diversity, Discrimination, and Equality in the Legal Profession or Who is Responsible for Pursuing Diversity and Why
Law Review Article
lawyer demographics, implicit bias in the legal profession
The legal profession lags behind other occupations in achieving diversity, and its quest for equality is frustrated by conceptual disagreement and confusion about the meaning of diversity, means of pursuing it, and responsibility for doing so. As a result, while minority under-representation and inequity constitute a serious problem, the profession’s diversity discourse is stuck in a state of counterproductive disarray.
The goal of this article is to explore and clarify some of these confused conceptual dimensions of diversity in the hopes of moving the equality agenda forward. Part I unpacks the concept of diversity, demonstrating that while commentators often proceed on the assumption that diversity is a well-defined concept, several competing definitions and meanings are in fact being pursued by various constituencies. It then identifies two of its distinct yet often confused components: formal diversity, and substantive diversity, exploring their justifications and studying the complex relationship between these facets of diversity and the notions of equality and discrimination. Based on this framework, Part I concludes by examining accountability and responsibility for diversity, analyzing the circumstances under which legal actors and institutions are obligated to pursue it. It establishes that the legal profession and all of its constituencies and members have a non-utilitarian duty to pursue substantive diversity, and argues that leaders of the bar, as well as actors who cause, even unintentionally, under-representation have a heightened duty to pursue diversity.
Part II applies this diversity framework by offering a contextual analysis of discrimination, underrepresentation and diversity in large law firms. For quite some time now large law firms have been in the forefront of diversity initiatives, committing significant resources to advancing diversity with somewhat disappointing results. Part II makes two contributions to understanding large law firms’ diversity efforts, and, in particular, their relative failure to achieve their stated goals. First, it asserts that commendable as they are, diversity initiatives are mistakenly regarded as voluntary, and ought instead to be thought of as mandatory. This, to be clear, is far from semantic, as large law firms’ tentative approach to diversity helps explain its shortcomings. Second, it explains why diversity efforts have not been as successful as expected and suggests ways of pursuing diversity more productively.