The Mansfield Rule and “Big Law’s” Embrace of Diversity Hiring

“Big Law’s” Embrace of Diversity Hiring Program

            In 1869, Arabella Mansfield became the first female attorney in the United States. Now, 150 years later, her legacy continues to impact the legal community. In June, 2017, 44 large law firms announced a partnership with Diversity Lab to adopt a diversity initiative called the “Mansfield” Rule, after the women’s rights pioneer. The program measures whether law firms affirmatively consider female lawyers and attorneys of color for promotions, senior level hiring, and significant leadership roles in a firm.[1] If a firm can demonstrate that it has done this for 30 percent of the candidate pool for these positions, it will attain “Mansfield Certification,” and earn the opportunity to send its recently promoted partners to a two-day Client Forum to build relationships with in-house counsel from companies such as Facebook, PayPal, and Microsoft.[2]

            The Mansfield rule is reminiscent of the National Football League’s “Rooney” Rule. For decades, many criticized NFL teams' minority hiring practices. These criticisms peaked in 2002, as data revealed that while more than 60% of players were black, only 6% of head coaches were.[3] The “Rooney” Rule, adopted in 2003 and named for then-Pittsburgh Steelers Chairman Dan Rooney,[4] requires teams to interview at least one minority candidate for a head coaching vacancy. Should a team fail to comply with the rule, the NFL will impose significant monetary penalties.[5] In 2003, the NFL fined the Detroit Lions $200,000 for failure to interview a minority candidate for their head coaching vacancy.[6]

            The Rooney Rule’s requirements are now applied to vacant general manager jobs as well, and the league has adopted a similar rule requiring that a woman must be interviewed for every open business front-office position.[7] At the time of the rule's implementation in 2003, only two minorities held head coaching positions, but four years later, minority head coaches led seven of the NFL's thirty-two teams.[8]

            The Rooney Rule’s legal basis lies in Title VII of the Civil Rights Act of 1964, which prohibits private employers from discriminating against employees because of race, color, religion, sex, or national origin.[9]

            While the law obviously outlaws overt race discrimination in employment, the Supreme Court, in Griggs v. Duke Power Company, extended the prohibition to employment policies that are not intentionally discriminatory, but have a negative impact on minorities. Duke Power Company had required a high school degree or passing of a general intelligence test as a prerequisite to transfer from its low-paying labor department to other departments that offered higher salaries. As a result, African-Americans were disqualified for these higher-paying positions at a higher rate than white applicants.[10] The Court held that even though Duke Power’s hiring requirements weren’t intentionally discriminatory, they still violated Title VII through disparate impact, reasoning that “practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices.”[11]

            In a disparate impact discrimination claim, a plaintiff must demonstrate that the defendant employer used an employment practice that disparately impacted a protected group. This can be shown with significant statistical disparities in hiring and employment figures. Once the plaintiff provides evidence of disparate impact, the burden then shifts to the defendant employer to rebut the claim by showing that the contested practice is based on a “business necessity” or is “related to job performance.”

            In 2002, attorneys Cyrus Mehri and Johnnie Cochran threatened to sue the NFL for Title VII violations. Their claim relied on the statistical dearth of black head coaches as proof that African-Americans faced a disparate impact for head coaching positions. The NFL, fearing a time-consuming and potentially embarrassing lawsuit, enacted the Rooney Rule as a form of “affirmative action” program.

            There are two types of affirmative action programs. “Hard” affirmative action programs require the hiring of minority applicants and may even impose minority hiring quotas. “Soft” affirmative action programs consist of minority recruitment and counseling policies that are designed to change the composition of the candidate pool indirectly.[12] The Rooney Rule is a “soft” program because a team with a head coaching opening is merely required to interview at least one minority candidate. It is not required to hire or even give preference to the minority candidate.

            There is statistical data suggesting that women and minorities are disparately impacted by law firm hiring practices. A 2003 study by the Equal Employment Opportunity Commission found that in large, national law firms, white men are more likely to be selected as partners than minorities and women.[13] The National Association for Law Placement, an organization that advises law students, law officers, and law schools on professional development and career services,[14] published a 2016 study that showed that from 2009 to 2016, the number of women lawyers at law firms in the NALP database only increased from 32.97 percent to 33.89 percent, a gain of less than one percent.[15] The number of minority lawyers at law firms in the NALP database increased from 12.59 percent to 14.62 percent, a gain of 2 percent.[16] The overall percentage of women and minority associates at large firms has even decreased over that time.[17]

            Based on the available data, it is possible that many large firms could be vulnerable to “disparate impact” claims. One could argue that law firms engage in employment practices that are facially neutral in treatment of different groups, but have affected protected groups more harshly than white males. One would not need to prove that law firms intended to cause a disparate impact, but could use the statistical data from the studies to demonstrate a significant statistical disparity to prove harmful effects on protected groups.[18]  Law firms that have embraced Mansfield are like the NFL when it embraced the Rooney Rule, taking affirmative remedial action to improve attorney hiring practices and prevent discrimination lawsuits based on disparate impact.

Though the Mansfield Rule, like the Rooney Rule, may take several years to have an impact, it may help to remediate a potential problem for the legal industry.