Throw Out the Diversity Playbook and Reimagine Inclusive Hiring

Law firms and other employers have been under fire for their diversity programs in the wake of the US Supreme Court’s decision on affirmative action in higher education. Setting aside the legal question of whether the decision requires a change in these programs—a matter the courts will sort out—it seems they must and will evolve away from their traditional focus on hiring “diverse” candidates toward some other approach. But what should that approach be?

Having a separate track for hiring diverse candidates was understandable in its inception, as it purported to remedy past discrimination against women and minorities in law firm hiring. My own father—appointed by Ronald Reagan as a federal judge—was denied a position in a law firm expressly because of his race.

Legions of women, who went on to great careers in public service and on the bench, also were denied opportunities to join law firms on an equal footing with their White male counterparts.

However, the separate “diversity” track approach was flawed from the beginning. Rather than address the factors that excluded underrepresented groups from the ordinary hiring process, diversity programs became an add-on or a safety valve that allowed firms to create the diversity that their general hiring process failed to deliver.

Unfortunately, the resulting two-tiered system signaled—unfairly—that “diverse” candidates mostly couldn’t cut it in the regular hiring process, and thus needed special effort by the firms to have any chance. It also generated resentment among “non-diverse” candidates who perceived unfairness in the so-called preferences that members of these underrepresented groups seemed to enjoy.

The better approach—which firms can now pursue as we move into an apparently post-diversity world—is one that focuses on inclusive excellence. This entails two presumptions and at least two resultant strategies.

Presumptions

The first presumption is that the objective of any hiring process is to acquire excellence. Firms should be interested in hiring the best people for positions they need to fill. But excellence doesn’t simply mean hiring the person with the best grades, the highest scores, or the most awards.

I have interviewed top students whom I would never hire because they lacked maturity, judgment, empathy, personality, perspective, experience—the list goes on. Fundamentally, any hiring process should have as its lodestar excellence as appropriately and broadly defined to place the best people in the job.

The second presumption is that no demographic group has a monopoly on talent. The excellence that employers seek doesn’t exclusively or predominantly reside within a single demographic component of the population. If that presumption is correct, then a hiring process that produces a monolithic group of employees isn’t yielding the most qualified people for the positions.

If excellence and talent are dispersed across members of multiple groups, and the people hired are exclusively or largely from only one group, I will lack confidence that I have hired the best people.

Strategies

What strategies flow from an ethos of inclusive excellence? With law firm hiring, firms will need to work harder to ensure they get exposed to a robust pool of prospective hires. That requires moving beyond some traditional proxies for merit that firms use to determine from which law schools to recruit and how deep in a law school class they will go.

Regional and specialty group career fairs provide such opportunities. Ubiquitous access to video conferencing tools also should enable firms to expand their reach beyond traditional channels.

Leaning into junior lateral hiring is a strategy that should be employed as well. With entry-level hiring, employers take a leap of faith, as relatively untested individuals are being selected based largely on their credentials and their potential—appraised by performance during the candidates’ educational and apprenticeship phases.

A junior lateral strategy focuses less on these imperfect indicia of quality and more on what matters—demonstrated performance in the role and the delivery of results. Imperfect and distorted proxies for merit—such as law school attended and class rank—can rightly be supplanted or at least supplemented by measures of actual merit when recruitment focuses on junior laterals.

Taking this approach isn’t a perfect solution; the pool of junior laterals will be determined by the cohort hired at the entry level. But if we are talking about hiring by major law firms—let’s say the Am Law 100—an inclusive excellence approach requires that they expand their search for lateral talent beyond other firms within that cohort.

Firms outside the Am Law 100, as well as attorneys practicing in the public sector or working in-house for businesses or non-profit enterprises all provide fertile territory for lateral recruitment. Hiring leaders and search firms shouldn’t hesitate to mine this field to identify talent.

An inclusive excellence approach to hiring is about ensuring the pool from which the hiring is done is as robust and inclusive as possible. Focusing energy on pool development will help identify the most talented individuals from across the spectrum who can add value to the firm.

But this is only part of the solution; firms must pay attention to the entire pipeline that produces the pool of candidates, taking care to provide equal opportunities for people from all backgrounds to enter and successfully to progress through the gauntlet that culminates in graduation and professional licensure. Firms and law schools have supported work in that space and likely will continue to do so.

Law firms and other entities that hire attorneys must be able to recruit a diverse set of individuals to assure the most talented people are filling available positions. Nothing the Supreme Court has said stands in the way of finding and retaining that talent if employers commit themselves to seeking them out everywhere they may be found.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

A. Benjamin Spencer is dean of the William & Mary Law School.

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