Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In a recent column, Roger Clegg argued that minority job fairs are illegal (“No Whites Need Apply,” Feb. 16, 2004, Page 50). He is wrong. Not only do minority job fairs serve a vital role in addressing racial disparities in the legal profession, but they are also lawful. Minority job fairs are one tool that legal employers use to reach out to potential minority employees as a way to counter racial discrimination that still exists in the legal profession. And Title VII of the Civil Right Act of 1964 actually permits and promotes such outreach activities. Rather than being jeered for their participation in minority job fairs, legal employers and law schools should be applauded. GETTING TITLE VII RIGHT Begin with Clegg’s treatment of the seminal cases on voluntary affirmative action programs challenged under Title VII. Clegg ignores the analysis supporting their holdings. In United Steelworkers v. Weber (1979) and Johnson v. Transportation Agency (1987), the U.S. Supreme Court rejected challenges under Title VII to voluntary affirmative action programs. The Court stressed in both cases that: “It would be ironic indeed if a law triggered by a Nation’s concern over centuries of racial injustice and intended to improve the lot of those who had been excluded from the American dream for so long constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy.” The Supreme Court could hardly have given a stronger endorsement to the idea that Title VII fully supports efforts such as minority recruitment fairs. Further, to the extent that Clegg refers to Weber and Johnson regarding hiring and admissions, his reliance is misplaced. Those decisions do not address recruiting fairs. And more important, their reasoning is not applicable to such fairs, for the simple reason that employment decisions � namely, ones on whether or not to hire applicants � are not made at job fairs. Outreach efforts simply cast a wider net and increase the number of qualified minorities in the applicant pool. One thread running through Supreme Court decisions in this area prohibits any affirmative action that serves as an “absolute bar” to nonminorities. Minority job fairs obviously create no such obstacle to the advancement of whites in the law; the overwhelming presence of whites in the legal profession attests to that fact. In reality, the overwhelming majority of law students find jobs through other means, such as job postings, referrals, on-campus interviews, or self-initiated contacts. Further, last year’s Supreme Court decisions in Grutter v. Bollinger and Gratz v. Bollinger lend further support to voluntary, race-conscious affirmative action programs like minority job fairs. Grutter involved a constitutional challenge, pursuant to the equal protection clause of the U.S. Constitution, of a public university’s affirmative action program. The Court recognized diversity as a compelling interest that justifies the use of race-conscious action. The Court’s analysis extends to the employment context. Grutter asserts that “[i]t is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.” The Court also cited an amicus brief filed by 65 major American businesses which “made clear that the skills needed in the increasingly global marketplace could be developed only through exposure to widely diverse people, cultures, ideas, and viewpoints.” And it noted the amicus brief filed by high-ranking leaders of the U.S. military and approvingly cited the use of “race-conscious recruiting” to “achieve an officer corps that is both highly qualified and racially diverse . . . .” Indeed, in the only federal court of appeals decision addressing diversity as a basis for affirmative action in employment since the Grutter and Gratz decisions, the 7th Circuit held last year in Petit v. City of Chicago that the Chicago Police Department “had a compelling interest in diversity.” Similarly, participation in minority job fairs by public schools and government employers would survive strict scrutiny. LAW’S MANIFEST IMBALANCE The cases cited by Clegg, like Johnson, establish that employers must demonstrate a “manifest imbalance” in “traditionally segregated job categories” as a sufficient basis for implementing race-conscious hiring efforts. There is indeed such an imbalance in the legal profession. Clegg’s assertion that the legal profession is free from discrimination simply because Title VII banned employment discrimination 40 years ago makes no sense. Based upon the enactment of a law, and with no supporting data, Clegg suggests that it would be difficult for employers to demonstrate imbalances in their work forces. He discounts the reality of racism in our society, and in the legal profession in specific. We are asked to take on faith that employment discrimination does not happen, because there is a law against it. One need look no further than the tapes in the infamous Texaco employment discrimination situation in the mid-1990s to see the reality of racism in corporate employment. There, tapes revealed that company executives disparaged an African-American holiday, and referred to African-Americans as “black jelly beans” (and possibly as “niggers”). If such raw racism exists in corporate boardrooms, it is likely that discrimination occurs in some law firms as well. Data back this up and attest to widespread racial disparities in the legal profession. Minorities compose 30 percent of this country’s population, but only 20 percent of law school graduates, 15 percent of new associates in law firms, 8 percent of state court judges, 4 percent of partners in law firms, and 3 percent of Fortune 500 general counsel. These bleak statistics demonstrate that the path to a legal career is not equally open to minorities. The legal profession has a responsibility to address this imbalance. The story does not end with statistics alone. Social research confirms that discrimination in the workplace is alive and well. One study published last year presented employers with comparable r�sum�s, different only in that some had names typically perceived as African-American and others as white. The study found that the r�sum�s with names associated with African-Americans were 50 percent less likely to generate a callback. Another study, also from last year, that involved face-to-face interviews found that African-American candidates were significantly less likely to receive job offers than comparably qualified white candidates. Given that such attitudes exist in the general workplace, there is every reason to believe that they also manifest themselves in the legal profession. In fact, a 2002 study of the nation’s largest law office, the U.S. Department of Justice, found that minority employees perceived their own workplace as biased and unfair, and were significantly more likely than whites to cite stereotyping, harassment, and racial tension as characteristics of the work climate. These findings rebut Clegg’s suggestion that legal employers could not demonstrate an imbalance when comparing “those in the labor force who possess the relevant qualifications.” Clegg’s article ignores the stark reality that discrimination exists � even in the legal profession � in spite of Title VII. It is true that in Wygant v. Jackson Board of Education (1986), the Supreme Court determined that societal discrimination alone is insufficient to justify a racial classification. As the above statistical and social science research shows, however, discrimination in the legal profession originates with individual employers. Given these facts, nothing in Title VII stands in the way of minority job fairs. Minority job fairs merely provide a lawful means to even the playing field. Not long after signing the Civil Rights Act of 1964, Lyndon Johnson addressed the graduating class at Howard University. As President Johnson said, “You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘you are free to compete with all the others,’ and still justly believe that you have been completely fair.” Given the racial disparities that continue to exist in the workplace today, affirmative action programs like minority job fairs serve as a vital � and lawful � tool for integrating the work force. APPLAUSE FOR THE COURAGEOUS If a law school participates in a minority job fair, students and alumni should write university officials and employer participants to applaud their recognition of the need for diversity in the legal profession. Statistics, social science, and real life instruct that the participation of minorities and whites in the legal profession is not as balanced as the scales of justice. In today’s anti-affirmative action climate, it is courageous for these individuals to decide to do what is right, even when it is unpopular. Given the goals of Title VII and the reality of racism in legal employment, minority job fairs have an obvious and legitimate appeal. The job fairs are simply outreach efforts. And Clegg himself has vouched for broad-based recruiting methods. At a 2003 National Press Club debate on “Affirmative Action in Government Employment,” Clegg agreed that taking “proactive steps to get rid of discrimination” and “casting a wide net” are “fine.” Indeed they are. As the U.S. Supreme Court recognized in Grutter, “[e]ffective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.” Michael L. Foreman is the director of the Employment Discrimination Project for the Lawyers’ Committee for Civil Rights Under Law, in Washington, D.C. He debated Clegg, among others, at the Feb. 6, 2003, National Press Club event discussed above. Lawyers’ Committee staff attorneys Sarah Crawford and Audrey J. Wiggins, as well as legal interns Runa Rajagopal and Kayonia Whetstone, significantly contributed to this article. Foreman can be reached at [email protected].

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.