The Trump administration’s federal contractor police plans to take a closer look at diversity and discrimination at law firms, a Labor Department official said.
“Law firms need to get their houses in order,” Craig Leen, director of the DOL’s Office of Federal Contract Compliance Programs, said April 10. “There is a big problem at law firms for women and women of color.”
Leen’s comments at an OFCCP town hall event in New York come amid a growing wave of sex discrimination accusations against large law firms. Six lawyers at Jones Day recently sued the firm, alleging female attorneys are systemically paid less than their male colleagues for the same work. That follows similar lawsuits against Ogletree Deakins and Proskauer Rose.
The share of lawyers who are women (23 percent) and members of minority groups (9 percent) has ticked up over the past decade, according to a 2018 study from the National Association for Law Placement. Women from racial minority groups represent about 3 percent of partners.
The OFFCP enforces pay, hiring, promotion, and other discrimination protections for workers employed by federal contractors. The office does that largely through random audits, including of law firms that do work for government agencies.
Haynes and Boone, Ballard Spahr, Fox Rothschild, and Mayer Brown are among some 3,500 federal contractors that were notified they could be selected at random for OFCCP audits in fiscal year 2019.
Leen said law firms were only a small portion of the contractors included in the audit list because the OFCCP focused on “industries that have the highest histories of violations.” He expects the office to turn its attention to discrimination in promotions as soon as the next fiscal year.
“The issue of promotion will be a focus review subject in the future,” Leen said. “And that’s where you will probably see a focus—through neutral criteria—on law firms, financial firms, universities, and probably tech companies. “
A New Jersey law firm in 2014 voluntarily agreed to be barred from participating in federal contracts for at least two years after refusing to provide human resources information requested during an OFCCP audit.
Paid Leave Problems
Leen said that “discrimination” and paid family leave issues are likely to blame for the relatively low share of female partners in many firms.
Though many firms offer paid leave for pregnancy and other family reasons, career advancement plans may prevent women who use that leave from moving up the ladder. Lawyers who choose to take family leave may also jeopardize their bonuses by trimming the hours they can bill to clients, Leen said.
“Don’t penalize them for taking leave,” he said.
Some firms that do business with the government have argued that the OFCCP doesn’t have the jurisdiction to investigate potential discrimination against partners, because those lawyers are considered owners or shareholders, rather than employees. The Labor Department plans to issue guidance on that question, Leen said.
In the meantime, the OFCCP is looking at partner promotions as a possible form of discrimination.
“The promotion of associates or nonequity partners to partners is something I think we would have jurisdiction over because we have jurisdiction over the employees who are being promoted or not promoted,” Leen said. “Someone who’s not promoted to partner is still an employee. So they’ve been harmed, would be the argument, if they’ve been discriminated against.”
The OFCCP also will be probing contractors for possible discrimination against workers with disabilities, Leen said. The average law firm has no disabled partners, according to the NALP study.