New York Lawyer
April 1, 2004

Q:
I�m an African American female and have been invited along for a pitch to a corporation. I�ve never worked in this practice area before, and I strongly suspect that I�m being brought along for my color and not my ability. The potential client is well known for its diversity efforts, though the person we�ll meet with is a white female. My firm (like many) says they value diversity but don�t do a great job of this in practice. How should I react to my apparently being "used" in this way?

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A:

At this point you don�t know that you are being "used," so be careful about jumping to conclusions. It�s possible you are just window dressing for a firm anxious to present itself as diverse to win a client; on the other hand, they may want to staff you and are intending to do so.

Perhaps you�ve gotten a sense that the intent isn�t sincere because of other actions and dynamics in the firm, which fuels your suspicion that your inclusion is only temporary (since you say their other efforts in diversity fall flat). Episodes like these, if in fact your suspicions prove true, underscore the difficulties minorities have had finding a place in the nation�s law firms.

One need only glance at statistics on minority retention to see that law firms have a serious issue in this regard. Figures from NALP show that in 1993 minorities comprised 2.55% of partners -- and in 2003 had risen to a whopping 4.04%. Part of this syndrome stems from a seeming inability to put systems in place and stick to them � governing mentoring, assignments, networking, socializing and so forth. Law firms in particular find it hard to move away from the informal patterns of the past, claiming that rigid systems promote bureaucracy and stiff formality, but informality protects the status quo and is the enemy of diversity. It�s hard to do new things, hard to work with people who are different from you, and therefore carefully wrought systems, meticulously administered, are at least part of the answer.

In fact, it may be that your firm is trying, in good faith, to put together a well-chosen team for its presentation (and following a system intended to ensure that minorities are given an equal chance to work on major projects). Corporate America is farther advanced, although not awesomely so, than legal America when it comes to acting upon diversity goals. Thus it�s common to see in corporate legal departments a requirement that there be diversity alignment with outside firms.

Good advice on this matter comes from Jennifer Bancroft DaSilva, Legal Director at Schering-Plough Corporation (based in New Jersey), an African-American attorney who worked in private firms before going inhouse. She says, "Many corporations now request a diverse team of attorneys to work on their matters. When I was in private practice, I was invited to a couple of `beauty contests� when corporations began to request diverse legal teams. However, I was typically given the opportunity to work on the matter if we `won.� It must be very demoralizing for someone to think that she is just being trotted out."

She goes on: "I know that it might be tough for the associate. However, I think that she should ask the partner if she will be staffed on the matter if the law firm gets it. If he says no, she should politely refuse to attend (saying, `I may not be the best person to attend� rather than `If you don't put me on the deal, I'm not going.�) If he is not that direct and says that he would consider it, she should say that she would really like to be part of the team and see what happens. If he gets the matter and staffs up without her, she should refuse to attend the next time. The point of the exercise is not just to have people show up who aren't going to work on the matter."

Always keep in mind your goals, along with evaluating the politics. If this potential new client presents an opportunity you want to have, it�s important to pursue it. If you�re not interested in the opportunity, but the firm requires your presence and staffs you on the matter, the issue of any impropriety in terms of bringing you along disappears, thankfully, but squarely presents more acceptable issues of career direction.

By the way, a firm that routinely follows a pattern of bringing along minorities only for "show" could present the potential for an action. "Ultimately, the only likely way this could become a basis for a viable legal claim is if it is part of a larger pattern in which, for example, the attorney is not being provided with substantive projects or assignments and is instead only being used as window dressing in the manner she describes and, as a result, the attorney does not advance or experiences other tangible losses in the workplace," according to Paul Buchanan, head of the Labor & Employment Group of Stoel Rives, LLP, in Oregon. There�s a potential action also, he says, "if she complains about this treatment and then experiences negative treatment as a result of the complaint." Of course filing an action is extreme, and you�re not even remotely at the point where there has been a pattern established; however, Mr. Buchanan describes the legal framework in which your situation rests.

Bottom line: monitor the situation carefully and be adroit in your efforts to suss out whether the firm�s intentions are noble or not.

Sincerely,
Holly English
Principal Consultant, Values at Work