The Supreme Court’s Affirmative Action Decision is Wrong – Here’s Something You Can Do

Bryan Schwartz Law disagrees with the Supreme Court’s recent rulings in SFFA v. Harvard and SFFA v. UNC, and agrees with the dissenters. The decision will make it harder to promote the critical objective of diversity in higher education, which in turn leads to fewer top professional opportunities for people of color in America. The legal profession, medical profession, and others are already not reflective of America’s diversity – which make us less effective as a society. The serious consequences can be felt in lives lost and in justice denied.

All is not lost. We can take steps in our own lives to foster a diverse and inclusive society, which I discussed in an article I published first as the Chair of the State Bar’s Labor & Employment Law Section back in 2017 – it is still true today, and I reproduce it here:

When people ask me what I do, I do not usually say that I am a labor and employment lawyer. I say that I am a civil rights lawyer. It is why I came into this business. I came here to enforce protections that will foster a diverse and inclusive society. Promoting diverse workplaces, in my view, gives us the best chance of real social change – if everyone is working together, advancing and earning equally, then we can break cycles of bias and poverty.

California, where I practice mostly, has an ignominious history of discrimination, including, among other examples: legally-sanctioned massacres of native Californians; lynching, segregation, and deportation of Mexican-Americans; Chinese-American exclusion; Japanese-American internment camps; hate crimes against African-Americans, and sexism throughout our society. California’s workplaces are not immune.

Fortunately, we have Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Rehabilitation Act, and the California Fair Employment and Housing Act. These are all important parts of our practice as California’s labor and employment attorneys.

But, as a Bar, we need to do more than work together to prevent unlawful discrimination from seeping into California’s workplaces. We need to model an inclusive, diverse society, and confront explicit and implicit bias, in our own law practices.

Sexism, for example, continues to be pronounced in the Bar, from such commonplace occurrences as women attorneys being treated like and mistaken for court reporters during court appearances and depositions, to more egregious examples. Several years ago, a federal judge sanctioned a plaintiffs’-side employment lawyer (who was ironically bringing a discrimination suit) nearly eight thousand dollars, after he told the defense attorney in a deposition (among other statements) that he was uncomfortable with her “female energy.” He accused her of conspiring with the female court reporter and videographer. As the Court ruled: “No number of disputes or perceived professional misconduct justifies [the sanctioned attorney’s] actions, in which he made disparaging remarks to opposing counsel, repeatedly insulted her and called her names.”

More recently, another federal judge sanctioned a defense attorney for (among other reprehensible conduct) saying to the female, plaintiffs’ counsel in deposition: “[D]on’t raise your voice at me. It’s not becoming of a woman ….” The Court found that defendants’ attorney’s attack “endorsed the stereotype that women are subject to a different standard of behavior than their fellow attorneys.” As the Court explained, such gender-based vitriol “reflects not only on the attorney’s lack of professionalism, but also tarnishes the image of the entire legal profession and disgraces our system of justice.” Gendered attacks “reflect and reinforce the male-dominated attitude of our profession.” The Court not only awarded fees and costs as a sanction, but required the offending male attorney to “donate $250 to the Women Lawyers Association of Los Angeles Foundation.”

Like these two federal judges, and especially as labor and employment lawyers, we should all take seriously combating sexism and all forms of invidious discrimination in our law firms and in our interactions with other attorneys. The State Bar of California, Rules of Professional Conduct, Rule 8.4.1, regarding discrimination, harassment, and retaliation in the practice of law was adopted effective November 1, 2018. The prior rule required that a court make a finding of discrimination before an attorney could be disciplined for discrimination. That rule resulted in non-enforcement of the rule. The rule changes deleted the pre-adjudication requirement – and comment [8] notes that discipline may be imposed even without an award in a civil/administrative proceeding. The revised standard should hold us all accountable to each other under our own rule of professional conduct for non-discrimination, independent of any judicial action, and I hope that over time it gives more teeth to our Bar’s non-discrimination rule.

We need to do more than just prevent discrimination, however. We need to be proactive so that our Section manifests the full diversity of the California employers and employees we represent every day. Recently departed Stanford Law Professor, Deborah Rhode, wrote an op-ed in the Washington Post explaining, “Law is the least diverse profession in the nation. And lawyers aren’t doing enough to change that. Lawyers are leading the push for equality. But they need to focus on their own profession.” The State Bar of California’s Labor & Employment Law Section did a member satisfaction survey five years ago, which found that less than 60% of us are satisfied with the diversity in our own practices, and only 24% of Section survey respondents were non-white – compared to the 60% of California residents who are people of color.

Bar organizations need to increase collaboration with minority bar associations to work on diversity initiatives, and to collaborate with law student groups to increase diversity in the practice of labor and employment law. I previously started a diversity initiative for California Bar Association’s (formerly State Bar’s) Labor & Employment Law Section, when I was Section Chair, and helped found and was president of the Foundation for Advocacy Inclusion and Resources (FAIR – www.fair-foundation.org). In FAIR, I have helped support fellowships for diverse law students and new attorneys to enter our practice area. And, it has been working. Over the years, we have seen over 100 diverse new attorneys enter the struggle to create compliant and inclusive workplaces, helped by FAIR’s efforts. FAIR has also hosted, among other events, annual southern and northern California diversity summits, to help diverse attorneys network and learn together about diversity issues we experience in our legal community. FAIR is just one organization, of course, and more states have should have groups like FAIR. Please use your power as a member of the labor and employment bar to make an impact, combating discrimination and promoting diversity in all of our workplaces – even your own.