Acosta DOL seeks to impose radical diversity agenda on law firms

The Obama Labor Department is now in its eleventh year. The first eight were under the direction of President Obama’s Labor Secretaries, most notably Tom Perez. The remainder are under the direction of Alex Acosta, President Trump’s choice for the job.

The latest manifestation of the DOL’s left-liberalism under Acosta is its warning to law firms that they must become more diverse or else risk losing contracts with the federal government. I have written about other manifestations here, here, and elsewhere.

The warning on “diversity” came from Craig Leen, director of the DOL’s Office of Federal Contract Compliance Programs (OFCCP). Initially, Ondray Harris was in charge of OFCCP under Acosta. Harris, a steadfast conservative, abruptly resigned. I suspect (but do not know) that he resigned because of the left-liberalism of the DOL under Acosta.

Leen told a gathering in New York that “law firms need to get their houses in order.” “There is a big problem at law firms for women and women of color,” he added.

There are two distinct issues here: (1) the very low number of black attorneys in big law firms and (2) the relatively low number of female partners. As to blacks, most big firms desperately try to recruit them. The problem is that blacks as a group aren’t performing very well in law school (or weren’t when I was recruiting). Amy Wax has highlighted this phenomenon.

This creates a dilemma for law firms. If they adhere to something approximating their normal standards for hiring associates, their associates won’t be “diverse.” If they bend their standards, blacks likely will disproportionately fail to advance to partner.

As to women, the problem centers around the choices they make regarding having and raising children. Leen talked about “family leave issues.” Firms typically offer paid leave for pregnancy. A woman who takes such leave but who returns to work full throttle soon after giving birth will very rarely face adverse consequences (if she does, she can pursue legal remedies). But if her billable hours and other indicators of her commitment to the firm lag after she returns, then naturally her prospects for advancement may diminish.

Leen’s remarks prompted discussion by the group he was addressing:

Some of the recommendations floated by working groups at the event included suggestions that firms reducing billable hours requirements for transitioning parents; that they credit billable hours for activities such as mentoring diverse associates; and that leave policies be enhanced to address life situations broadly, not just parental leave.

These are interesting ideas, and law firms may wish to consider them. But the notion that firms are legally required to adopt any of these options if they wish to do business with the federal government is quite radical. Indeed, it’s laughable, I think.

Unfortunately, the Obama-Perez-Trump-Acosta Labor Department is not averse to peddling laughable, radical ideas in litigation. Fortunately, it hasn’t been very successful so far (the subject, probably, of an upcoming post).

Acosta and Leen probably hope that law firms will cave, or at least compromise, rather than resist. They very well might. Law firms are not renowned for their spine. And although a given firm could probably successfully resist the OFCCP, the mere fact that the government is singling it out for lack of “diversity” could affect its standing with clients, corporate American being what it is these days.

One might have hoped that a conservative administration wouldn’t be coercing businesses in this fashion. But the Trump administration’s conservatism has not penetrated the Labor Department. Alex Acosta has seen to that.

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