Buying Diversity: Fenwick & West Offers Cash Incentives for Diversity Activities


Today The Recorder reports that Fenwick & West has a program in place that “closely ties diversity goals to partners’ compensation. Fenwick mandates so-called ‘upward’ reviews where associates specifically evaluate how much a partner has done to support diversity at the firm.” For those who wonder whether law review articles impact the non-academic world, this shift may be influenced by work by Richard Sander.

You may remember Professor Richard Sander and the papers he has published examining race and the legal profession (A Systemic Analysis of Affirmative Action in American Law Schools and The Racial Paradox of the Corporate Law Firm ). The first article prompted a response in Slate by Emily Bazelon, Sanding Down Sander: The debunker of affirmative action gets debunked, that summarizes criticism of Professor Sander’s article on law schools and has many links to the papers written in response to that one. As for the article on race at corporate law firms James Coleman and Mitu Gulati have a response (which is available from Professor Sander’s site). As Coleman and Gulati note the paper’s focus on grades may have flaws but they also note that Sander’s work documents “attrition problems, [And] Sander’s data also help either dispel myths or confirm intuitions on a number of fronts” including “demonstrat[img] that minority students are at least as interested in the practice of corporate law in the large law firm setting as their white colleagues, puncturing the myth that black students are disproportionately interested in civil rights and pro bono work and disproportionately uninterested in large-firm practice.” The response also credits Professor Sander with documenting significant minority recruiting efforts by firms and yet despite those efforts the attrition rate for black associates is high because “black associates are doing more of the grunt or rote work, receiving less responsibility and client contact, networking less with the partners at their firms, and consequently becoming more disillusioned with the firms earlier in their tenures.”

Elsewhere one critic, R. Bruce McLean, chairman of Akin Gump, had to admit “Nonetheless, the study serves as a call to action for large firms: It is time to reflect on the progress made in our minority attorney recruiting and socialization efforts and to examine where we can continue to improve.” And Kay Hodge, who chairs ABA’s Commission on Racial and Ethnic Diversity in the Profession, called “Fenwick’s practice is ‘an innovative and creative step’ for a firm.”

So what do people think? Is there something wrong with paying people to support diversity? Could it somehow aggravate perceptions about affirmative action? The Recorder article notes that many firms ask partners to list the ways they serve the firm through non-billable work and that supporting diversity is often listed. But I recall some attorneys I know feeling that amorphous service is never clearly compensated. As such perhaps explicitly tying the acts to money will have more impact on behaviors. I also think there is something odd about being paid to do something one ought to do in any event but that thought is for another time.

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1 Response

  1. A serious aside: have the benefits of skin-deep diversity (because that’s what we’re talking about here, isn’t it?) ever been clearly delineated such that when you talk about its importance you can finish up with a “and here are the tangible benefits.” Would it be beneficial then to discourage the ongoing premise of Historically Black Colleges & Universities? How about gender diversity? The Market has pretty much discarded the all-male college: should the market also be declared wrong when it comes to the ongoing success of women colleges and thus have us put an end to the discrimination rampant at schools like Wellesley?

    We can go on: how many law schools have faculties that come within even 20% of the political sensiblities of the populace at large? Would we need more than one hand to count the such faculties that even had a 40% vote for George Bush in 2000 or 2004? Is the lack of such thought diversity important?

    In other words, why does skin-deep diversity get to be the defacto diversity of importance? I suspect it’s white liberal guilt but then that’s my bogeyman for a lot of imposed policies.