Diversity and Inclusion in the Legal Profession: a Missed Opportunity for the Antitrust Practice

• Publication year: 2021
• Author: By Anthony Leon

DIVERSITY AND INCLUSION IN THE LEGAL PROFESSION: A MISSED OPPORTUNITY FOR THE ANTITRUST PRACTICE

By Anthony Leon¹

I. INTRODUCTION

Discussions about the importance of diversity in the workplace have flourished over the past few decades. In an inherently and historically diverse American society, various professions remain overwhelmingly held by white men. The legal profession has not been spared from this critique. On average, 83.5% of the people working in legal occupations in 2020 self-identified as white.² While not surprising, this assessment is stark: it is evidence that the legal jobs market in the United States remains largely non-diverse and unequal.

Yet, diversity could triumph in the legal profession. The law and its enforcement are at the core of our democracy. It is a singular profession where one gets to reflect on past decisions to guide decisions in the present. It is also a profession where one can elect to work on the subjects they most care about. Lawyers' interpretation of the law contributes to design and shape society. It is an essential political instrument that can be utilized to reach specific goals. Traditionally used to enhance consumer welfare, antitrust law enforcement may be targeted to have a more significant social impact. For instance, practitioners can focus on combatting anticompetitive conduct having adverse effects on people of color. All in all, people from diverse backgrounds and experience, often motivated with a desire to change society, help others, and make a difference, should have every reason to join the legal profession—and why not practice antitrust law.

It would be unfair not to recognize certain organizations have made efforts to promote diversity in the workplace. Law firms in the United States, for which it is considered critical for their business and a priority,³ have strived to implement measures for the recruitment, training, retention, and advancement of diverse talent. Diversity is also crucial to reinforce trust in the legal profession. As a complicated and continually evolving subject, diversity requires consequent resources and continuous attention.

However, the past year and the multiple challenges people of color have faced forced employers to reconsider their diversity programs. The global pandemic has considerably transformed the work environment. Remote working isolates employees in their homes, creating a new obstacle for inclusion. Moreover, with disproportionate effects on people of color, the pandemic has emphasized inequalities between communities.⁴ If this were not enough, the deaths of Breonna Taylor, George Floyd, Jacob Blake, and too many other people of color, the non-condemnation of White supremacists at the highest office in the country,⁵ or the public attack on democracy in cities and states where voters of color are predominant⁶ have led to social and racial unrest throughout the country. The too-long-delayed-but-necessary conversation about structural and systemic racism in society must be addressed. All employers, including in the legal profession, ought to engage in this discussion. Inconsequential commitments to diverse principles and values are no longer sufficient. People are calling for action towards social justice and equality.

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This article is my contribution to shaping a more diverse and inclusive legal profession. It is also my opinion on the importance of diversity. As a White queer man born and raised in France who recently immigrated to California, witnessing the changes in American society led me to challenge my own culture and beliefs. I grew up in a country where it is inappropriate to speak in public about race because it immediately refers to biological racism.⁷ As such, these communities are not legally recognized in France.⁸ In my country, the legislature is deliberately silent on race or ethnicity under the pretense that—as written in our Constitution—the people should be "one and indivisible."⁹ But this same legislature adopts laws neutral in appearance, making it illegal for a person to cover all their face but their eyes in a public forum, intentionally designed to adversely prohibit women from wearing a burqa.¹⁰ My past experience is in opposition to the one I am living in the United States, where race, origin, sexual identity, sexual orientation, or other differences are fundamental parts of who individuals are. Besides being more exposed to diversity, I learned to listen to people's experiences and continue to work on my blind spots and biases. Despite self-identifying as a member of the LGBTQIA+ community, I am conscious of my inherited privileges.

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In Part I, I strive to explain what diversity is and why it matters to foster it in the workplace. I develop my belief that diversity is a concept because it may have multiple meanings. This leads me to summarize the benefits diversity can provide to an organization when nurtured simultaneously with an inclusive culture. In Part II, using available statistics about diverse representation in the legal profession and the antitrust practice, I assess the state of diversity before reminding of persistent non-inclusive behaviors. In Part III, I express my belief that the antitrust practice should champion diversity for two reasons. One is that antitrust law can be a tool to combat social injustices and inequalities; the other is that its practice has everything susceptible to attract diverse talent. Finally, in Part IV, I offer a series of recommendations to ameliorate diversity and inclusion in the legal profession, from changing law firms' practices to a proposed revision by State Bars of the attorneys' code of conduct.

II. THE CONCEPT AND THE IMPORTANCE OF DIVERSITY IN A WORKPLACE

A. Defining Diversity as a Word and a Concept

Before discussing why diversity matters in a workspace, it is essential to discuss the word's meaning, and further if it can be considered a concept. In the American English dictionary, diversity is defined as the "condition of having or being composed of differing elements,"¹¹ though when applied to a group of people, it is preferably defined as "the inclusion of people of different races, cultures, etc."¹² In both cases, diversity refers to the existence of differences, regardless of which kind, within a broader ensemble—such as a group of people or items. Thus, assuming this ensemble is the people in a workplace, diversity consists of recognizing that differences between the persons in a workplace exist.

This short but broad definition remains insufficient to consider diversity as a concept. Most often based on experiences, a concept is an assembly of mental representations developed from thoughts and beliefs about a particular subject. Said differently, if a subject can be mentally represented in various ways, it may very well be considered as a concept.

Diversity is a subject that has been interpreted in various ways over the past few decades. Several factors may influence someone's definition, including time, culture, history, policies, experience, or beliefs.

Time has influenced how people understand diversity. If two persons of different generations were to discuss the meaning of diversity, the chances are that their interpretation will significantly differ. For example, Dr. Roosevelt Thomas, Jr. published in 1996 his reflection on diversity, which he defined broadly as "any mixture of items characterized by differences and similarities."¹³ While his definition can find some relevance today, the context in which it was written can not. At the end of the twentieth century, developments on diversity focused on acknowledging differences and similarities between White people and Black people, men and women, straights and gays. Thinking of diversity today as only affecting these communities would be unseemly.

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Other than time, a nation may define diversity based on its culture, history, norms, beliefs, or policies. For instance, there is a distinction between a European approach to diversity and the North American one. Public policies and history in Europe—especially World War II—greatly influenced people's perception of diversity. In Western Europe, people often refuse to categorize individuals in communities while acknowledging that differences exist. In France, public policies identifying groups of individuals on the basis of race, origin, or religion are unconstitutional.¹⁴ Despite differences between individuals, the French people are one and indivisible. This governmental approach is said to be "race-blind."¹⁵ An excellent illustration of this approach is the 1978 act on information technology, data files, and civil liberties, which includes a prohibition on "the collection and processing of personal data that reveal, directly or indirectly, the racial and ethnic origins, the political, philosophical, religious opinions or trade union affiliation of persons, or which concern their health or sexual life."¹⁶ France is not the only country in Europe hostile to collecting these sensitive data sets. In 2017, the Justice and Consumers' department of the European Commission recognized, in a report on "Data collection in the field of ethnicity," the existence of contestations and debates within the Member States regarding the usefulness of racial and ethnic data collection.¹⁷ Indeed, a few anti-racist European non-governmental organizations have long been opposed to collecting this data, which they argue fosters racism.¹⁸ Thus, this diversity approach gives no room to communities and tends to unite individuals as one people, all equal in front of the same law, regardless of any differences.

This diversity approach appears at odds with the North American one, where individual differences are recognized and considered a fundamental part of who people are. Contrary to France, United States agencies such as the Census Bureau or the Department of Labor's Bureau of Labor Statistics (BLS) regularly collect data and conduct...