“If they don’t negotiate, we will litigate.” Those are the words of famed attorney Johnnie L. Cochran Jr. in October 2002 at a press conference imploring reform of the NFL’s hiring practices.
The news of Brian Flores’ lawsuit alleging discrimination in hiring practices of the NFL and three of its teams immediately made me think of Cochran and made me curious about which law firm was representing Flores. The complaint was filed by a reputable firm that currently lists zero partners of color on their website.
This watershed moment not only shines a light on the NFL’s horrible record on inclusive hiring but also inadvertently showcases the lack of diversity and inclusion in the legal profession. It was jarring to see that the firm Flores retained not only highlighted the law profession’s lack of diverse representation but also that the dispute is about this exact issue, albeit in a different industry.
The Rooney Rule was developed on the foundation of the work of civil rights attorneys, Johnnie Cochran and Cyrus Mehri. Published in 2002, their groundbreaking report, Black Coaches in the NFL: Superior Performance, Inferior Opportunities, showed that while statistically Black coaches won more games than White coaches, they would continuously lose out on head coaching jobs to White candidates. By shining a light on these undeniable discrepancies, they also played a pivotal role in starting conversations around the importance of diversity in the workplace.
I’ve always admired influential Black leaders and community change-makers like Cochran and was thrilled to be able to begin my tenure as an attorney at his firm. I’ve since worked for several law firms, including an Am Law 100-ranked firm, before hanging up my own shingle three years ago.
During my first year at the Cochran Firm, the legendary former NFL player and activist John Wooten visited the office and shared stories about the release of the 2002 report. It was Wooten who helped push for the NFL to develop the Rooney Rule. Named after the late Pittsburgh Steelers owner, Dan Rooney, the rule requires NFL teams to conduct at least two external interviews of minority candidates for openings for head coach, general manager, and coordinator positions.
Rooney, who also served as chairman of the league’s diversity committee, left a lasting mark on the NFL, including six Super Bowl titles. The first of which in 1975 was largely built on HBCU talent. It’s no coincidence that the Steelers recently hired Flores as an assistant coach while the discrimination lawsuit is ongoing. I believe their record on diversity is one of the best in the league.
Flores’ lawsuit shows that the issue isn’t with the Rooney Rule itself, but with accountability. While the NFL had previously held teams accountable for skirting the rule, in 2017 the league sided with the Oakland Raiders following widespread sentiment that they did not adhere to the rule in good faith when hiring coach Jon Gruden.
When Raiders owner Mark Davis made an admission to Oakland reporters showing he had obviously intended to hire Gruden before conducting interviews with minority candidates, it was hard not to feel like they were merely checking the required boxes. This has always been an issue with most diversity initiatives.
Law Firms Must Do More to Diversify
After the murder of George Floyd and the protests across the country that followed, many law firms denounced racial inequality and pledged to push for change. Given these promises, Black representation in major law firms is still abysmal. The American Bar Association’s 2021 Profile of the Legal Profession report shows that nearly all people of color are underrepresented in the legal profession, with Black people comprising only 4.7% of all lawyers—almost unchanged from 4.8% 2011. The report also shows that more senior roles equate to lower representation—attorneys of color made up 26% of associates, but only 10.2% of partners.
At a minimum, law firms should be actively working towards building and maintaining a diverse workforce. Basic initiatives such as implicit bias training, developing a culture and brand that values diversity and inclusion, and seeking expertise from DEI professionals are necessary steps in the right direction. Even with these initiatives in place, accountability will always remain the bottom line to achieving lasting change, as exemplified by the NFL’s inconsistencies.
Becoming Mansfield certified is a good start as an accountability measure. Inspired by the Rooney Rule, certified law firms are expected to consider a diverse slate of candidates for a number of roles, committees, and leadership activities. Diversity Lab enforces the measure through monthly check-ins and semiannual data collections from participating law firms.
Like the Rooney Rule, these accountability measures are designed to create opportunities for more qualified diverse candidates and remove impediments to their success. Instilling these values of “intentionality” and “accountability” are critical for firms looking to meet today’s diversity challenges.
My time at the Cochran Firm, which boasts an unequivocally diverse roster of partners, continues to inspire me. It helped me envision my dream to create a legacy that also values diversity and inclusion. I launched ARS Counsel with the mission of making high-quality expertise in corporate, intellectual property, and entertainment law more accessible to entrepreneurs of color—another group that is often under-resourced and overlooked.
The biggest lesson from the Brian Flores story is that the widespread issues we continue to face with workplace diversity will remain unless there is more accountability and a true cultural shift.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Almuhtada Smith is the principal attorney at ARS IP Law Firm P.C. (ARS Counsel), which he founded in 2018. He handles complex transactional matters, providing counsel to start-up enterprises, entertainment professionals, venture-backed companies, and family-owned businesses. He spent the first decade of his career at large law firms, including Jenner & Block.