HP pressures law firms to engage in discrimination

Kim Rivera, the chief legal officer and general counsel of HP Inc., has sent a letter to law firms that represent that company. The letter “mandates” (HP’s word) that these firms meet racial, ethnic, and gender quotas she has set for them. Rivera states that HP will withhold up to 10 percent of any amount invoiced by the law firms if they “do not meet or exceed our minimal diverse staffing requirements.”

Rivera informs the law firms that to ensure full payment for legal services rendered, they “must field (i) at least one diverse Firm relationship partner, regularly engaged with HP on billing and staffing issues; or (ii) at least one woman and one racially/ethnically diverse attorney, each performing or managing at least 10 percent of the billable hours worked on HP matters.” She adds that “the definition of a diverse attorney. . .is limited to race/ethnicity, gender, LGBTs status, and disability.”

I find it interesting that HP isn’t requiring that blacks or hispanics be involved with any of its legal work. As I read the mandate, a firm can comply by assigning a woman (straight or lesbian) or a gay man to regularly engage with HP on billing and staffing issues. In today’s world, I think this will be rather easy for most mid-size and large law firms (the mandate excludes firms with fewer than 10 attorneys).

Thus, it seems to me that HP is engaging mainly in grandstanding. It hopes to get credit as leading the charge in favor of diversity, when all it’s really doing is requiring firms to shuffle female lawyers around. Nothing, or virtually nothing, is being done for the minority groups that are struggling to gain a foothold in major law firms (generally through no fault of the law firms).

Why not? I won’t speculate.

But to say that HP’s requirement isn’t very consequential is not to say it’s innocuous. Roger Clegg at NRO points out that Title VII of the 1964 Civil Rights Act and 42 U.S.C. section 1981 bar employers from engaging in workplace discrimination on the basis of race, ethnicity, and gender. In addition, “it is wrong to treat [a firm’s] lawyers differently because of their skin color or what country their ancestors came from or what kind of reproductive organs they have.”

If a law firm hires or promotes a black or hispanic lawyer in response to HP’s mandate, when it otherwise would have hired or promoted a white lawyer, I think this would constitute unlawful discrimination. To my knowledge, customer preference still is not a defense to selecting employees on the basis of race or ethnicity. Such a defense would have undermined the anti-discrimination promise of Title VII in its early days when some customers didn’t want to deal with blacks.

If a law firm assigns a female lawyer (or a black or hispanic one) to HP’s account in response to Rivera’s letter, when the assignment would otherwise have gone to (or continued to stay with) a white male lawyer, this might support a discrimination claim too. A gender-based assignment decision could easily influence compensation and/or promotion decisions at the firm. Women have often based discrimination claims on being denied access to high-profile, high-opportunity assignments.

I’d love to see the Trump EEOC sue a law firm over decisions made in an attempt to meet HP’s mandate. A fellow can dream, can’t he?

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