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 statistics on race, ethnicity, gender, age, and disability.¹⁹ Furthermore, some private organizations are also allowed to conduct similar surveys. Here as well, history, culture, and public policies can explain this approach. Historically recognized as a racially diverse region, individual differences were acknowledged early on and used to shape public policy. After the colonization, individuals were generally categorized as either Native Americans, European Americans, or African Americans. Although the motivation was far from celebrating people’s differences, it certainly has developed and fostered over time feelings of belonging to these communities. In the early days of the United States, differences between individuals were naturally used to create legal distinctions on an objective basis of physical characteristics, social circle, and assumed ancestry. For example, during the very first census in the United States in 1790, individuals were categorized either as "free white" male or female, "all other free persons," or "slaves."²⁰ Racial segregation also contributed to creating legal separations between ethnic communities. But diversity’s meaning and its use progressively changed during the twentieth century. The change was partially prompted by the development of modern aspirations such as employment equity, equal opportunity, or affirmative actions. Individuals’ differences are increasingly getting the acknowledgment and protection they deserve instead of justifying legal separations. The country’s multicultural diversity becomes valued if not encouraged. Despite not being explicitly written in the United States Constitution, attainment of diversity within a group of people was even recognized in 1978 as a legitimate interest. In Regents of the University of California v. Bakke, Justice Lewis F. Powell, Jr. declared that aiming to reinforce diversity among students in an institution of higher education was "clearly a constitutionally permissible goal."²¹

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Through this evolution, public policy contributed to raising awareness of communities’ existence. People’s differences are now recognized, protected, and valued by reason of a series of enacted laws. While not directly promoting diversity, these laws aimed to fight discrimination against underrepresented communities. To name a few examples: the Equal Pay Act of 1963 prohibiting wage discrimination between men and women raised awareness of gender differences;²² Title VII of the Civil Rights Act of 1964 making it illegal for public or private organizations to discriminate on the basis of race, color, religion, sex and national origin raised awareness of each of these traits;²³ the Age Discrimination in Employment Act of 1967 prohibiting discrimination against employees and applicants being 40 years old or over raised awareness of age differences;²⁴ the Pregnancy Discrimination Act of 1978 prohibiting discrimination against job applicants or employees on the basis of pregnancy, childbirth or related conditions, raised awareness both of gender and pregnancy;²⁵ the American with Disabilities Act (ADA) of 1990 prohibiting discriminations from employers on the basis of disability,²⁶ and requiring job accommodations for individuals with a disability, raised awareness of disabilities;²⁷ the Civil Rights Act of 1991 making considerable changes on procedural and substantive federal law on discrimination cases reinforced the need to protect specific classes;²⁸ the Genetic Information Nondiscrimination Act of 2008 prohibiting forms of genetic discriminations;²⁹ or the ADA Amendment Act of 2008 broadening the definition and protection of disability.³⁰ More recently, legislators began requiring affirmative actions towards diversity. For example, following the adoption in 2018 of a law requiring at least one woman in corporations’ board of directors when headquartered in California,³¹ California legislators recently extended other diversity requirements in corporations’ board of directors.³² On September 30, 2020, Governor Gavin Newsom signed into law a bill whose purpose is to impose "affirmative action plans to address past discrimination and patterns of discrimination."³³ To do so, the bill starts by providing the very first legal definition of an "underrepresented community" as a group of "individuals who self-identif[y] as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self-identif[y] as gay, lesbian, bisexual, or transgender."³⁴ Under the new requirements, public corporations headquartered in California will now be required to include a certain number of underrepresented communities in their board of directors. The attempt to legally define "underrepresented community" should most of all be commended.

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While not exhaustive, these differences and evolutions in the interpretation of diversity show that a single definition of diversity is unlikely to encompass all its possible meanings. People’s experiences, shaping their beliefs and thoughts, leads them to have their own mental representation of diversity. As a result, diversity may be considered a concept. In modern American society, diversity goes beyond acknowledging individuals’ differences: it recognizes each soul is unique. People’s differences and self-identifications should be valued, regardless of what they are. Race, ethnicity, gender, age, sexual orientation, disability, beliefs, political opinions, or religions are the most notable differences when speaking of diversity. However, every single element that can make a person who they are should be valued, including their clothing, hairstyle, makeup, hobbies, experience, character, or language.

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Diversity as a modern concept in American society may therefore be the recognition, acceptance, and respect of every individual’s uniqueness and differences. However, respecting others’ differences is also respecting their interpretation of diversity. People should engage in conversations to better address diversity in a social setting.

Yet, diversity must be nurtured simultaneously with inclusion. Rejecting assimilation, an inclusive culture calls for affirmative actions to ensure everyone feels included. People should not have to deny a fundamental part of themselves so that other people feel more comfortable in their presence. Respect and acceptance of someone’s uniqueness are only achieved when they feel safe to be their authentic self in society. Speaking about diversity alone is not enough, workplaces must promote both diversity and inclusion.

B. The Importance and Benefits of Diversity in the Workplace

Various benefits have been recognized in promoting diversity and inclusion within an organization. William Bowen, a former president of Princeton University, described the benefits of having a diverse student body. His words were published in a footnote of Justice Powell’s Bakke opinion. He wrote: "[a] great deal of learning occurs informally. It occurs through interactions among students of both sexes; of different races, religions, and backgrounds; who come from cities and rural areas, from various states and countries; who have a wide variety of interests, talent, and perspectives; and who are able, directly or indirectly, to learn from their differences and to stimulate one another to reexamine even their most deeply held assumptions about themselves and their world. As a wise graduate of ours observed in commenting on this aspect of the educational process, ‘People do not learn very much when they are surrounded only by the likes of themselves."³⁵

Diversity and inclusion in the workplace benefits society and individuals. It is said that, on average, Americans will spend a third of their life working, equivalent to approximately 90,000 hours. Spending that amount of time at work can substantially impact someone’s life. Promoting diversity and inclusion at work is likely to teach workers social values they can replicate outside the workplace. An organization’s action is likely to ripple through society.

On the business side, a few studies have established that diversity and inclusion in an organization have significant impacts on several aspects such as its reputation, its responsibility, its teams, or even its finances.³⁶ According to a global report conducted by the International Labour Organization (ILO), the promotion of diversity and inclusion increases an organization’s chance to improve its reputation by 57.8%.³⁷ In fact, fostering diversity and inclusion improves the reputation of the organization, of its products, or its services. As for the products or services, the use of diverse advertisements was proven in a recent study to increase consumers’ intent to buy.³⁸ With regard to the workplace, the reputation associated with an inclusive culture generally leads to greater chances of hiring and retaining talent, ultimately benefitting the whole organization. People often look for role models in their organization, and they must believe that they have an equal opportunity to grow their skills and find networking opportunities. In this regard, the presence of diverse persons at leadership levels was proven to both reduce diverse talent’s turnover³⁹ and increase innovation.⁴⁰ Gender-diverse management and leadership have also been linked to better results in corporate responsibility, such as a diminution of lawsuit exposure, more outstanding compliance management, and a diminution of risk exposures.⁴¹ Diverse teams often bring a different perspective, reflection, approach, or point of view to a project. They contribute to the richness of a work environment. Here, the ILO found that promoting diversity and inclusion in an organization led to a 59.1% increase in creativity and innovation.⁴² It increases employees’ performance by raising problem-solving and decision-making abilities.⁴³ Finally, research shows promoting diversity and inclusion has a positive effect on finances. It increases an organization’s revenues, its sales performance, and its returns on investment.⁴⁴

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As business organizations, law firms promoting diversity and inclusion should see all the benefits mentioned above. In this view, it is in their interest to hire and retain diverse talent, promote an inclusive culture and value diverse opinions. More than just benefitting the workplace, law firms’ commitment to a diverse and inclusive culture helps increasing respect towards the legal profession. It also makes the profession more visible to diverse crowds prospecting to practice law. There are also specific benefits in terms of law firms’ business development. Most prospective clients primarily hire firms based on their best chances of success. However, prospective clients may be sensitive to the firm’s culture. If two equally competent firms compete for a prospective client’s business, the prospective client may ultimately decide to retain the services of the firm having an inclusive culture.

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This is particularly important if counsel represent a clearly diverse class’s interests or face a jury. The judiciary is increasingly sensitive to the importance of diverse representation. In a recent order, Judge James Donato in the Northern District of California consolidated cases into a class but denied the interim counsel request due to concerns about lack of diversity.⁴⁵ The proposed lead counsel team was solely composed of experienced men. Without doubting their competence, Judge Donato held that "leadership roles should be made available to newer and less experienced lawyers, and the attorneys running this litigation should reflect the diversity of the proposed national class."⁴⁶

In sum, promoting diversity and inclusion in a firm will most likely increase its competitiveness rather than hurting it. It is now relevant to study the state of diversity in the legal profession, and specifically the antitrust practice.

III. THE STATE OF DIVERSITY IN THE LEGAL PROFESSION AND THE ANTITRUST PRACTICE

A. The Apparent Non-Diverse Legal Profession

1. Statistics in the Legal Profession

In 2015, Deborah L. Rhode, Professor of Law at Stanford Law School and authority in legal ethics, asserted in an article published in the Washington Post that "law is one of the least racially diverse professions in the nation."⁴⁷ According to the US Bureau of Labor Statistics’ (BLS) 2020 Labor Force Statistics from the current population survey, 83.5% of the people surveyed working in legal occupations is White.⁴⁸ This is the highest percentage within the pool of professionals and related occupations, followed by the education and entertainment sectors—both sectors having 82% of the people surveyed self-identifying as White—and far above healthcare professions—with 75.6% of the people surveyed self-identifying as White. It is apparent that even five years after Professor Rhode’s affirmation, the legal profession remains the least diverse profession in the country. This lack of diversity becomes even more noticeable when looking at statistics by practice.

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Private practice statistics usually show significant disparities in communities’ representation. In February 2021, the National Association for Law Placement (NALP) published its 2020 report on diversity in US law firms.⁴⁹ NALP’s statistics are based on a pool of nearly 101,000 partners, associates, and lawyers from 883 offices of various sizes. Among the 101,000 surveyed lawyers, 37.14% self-identified as women, 17.95% as people of color, 9.32% as women of color, 0.88% as having a disability, and 3.31% as being LGBTQIA+.⁵⁰

The report also provides details about diverse representation at different levels in law firms. At the associate level, on average, almost one of every two associates self-identify as women, while only one of every four associates self-identify as being a person of color. Specifically, among 43,398 associates, 47.45% self-identified as women, 26.48% as people of color, 15.17% as women of color, 0.99% as having a disability, and 4.66% as being LGBTQIA+.⁵¹ The disparities are increased at the partner level. Statistics show that there are almost two times fewer members of underrepresented groups in the pool of partners surveyed. Among 42,438 partners, 25.05% self-identified as women, 10.23% as people of color, 3.79% as women of color, 0.69% as having a disability, and 2.19% as being LGBTQIA+.⁵² At the counsel and non-traditional track levels, diverse representation is generally higher than at the partner level. Among 11,293 counsels, 36.81% self-identified as women, 11.72% as people of color, 5.80% as women of color. Among 3,823 non-traditional track attorneys, 55.35% self-identified as women, 25.14% as people of color, 14.65% as women of color.⁵³ In this pool of counsel and non-traditional track attorneys combined, 1.17% self-identified as having a disability, and 2.57% self-identified as LGBTQIA+.⁵⁴ Finally, at the summer associates’ level, 53.62% self-identified as women, 36.48% as people of color, 22.12% as women of color, and 7.68% as being LGBTQIA+.⁵⁵ Additional statistics are provided through the report, specifically in terms of race. At the associate level, 12.12% self-identify as Asian (7.18% women), 5.10% as Black or African American (3.04% women), and 5.64% as Latinx (2.99% women). At the partner level, 4.08% self-identify as Asian (1.62% women), 2.10% as Black or African American (0.80% women), and 2.80% as Latinx (0.90% women).⁵⁶

Overall, these statistics reveal senior leadership in law firms remain significantly less diverse than the cohort of junior lawyers. Even at the lower levels, progress must occur. Despite yearly progress in most communities, law firms ought to maintain their efforts to increase underrepresented communities’ presence at each level, particularly at the leadership level.

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NALP’s efforts to increase the visibility of non-binary lawyers in law firms can nonetheless be commended. For the first time in 2020, NALP inaugurated statistics on lawyers self-identifying as non-binaries—9 associates and 8 summer associates in total. For future statistics, NALP should go further and collect data by sexual orientation, identity, sexuality, and other genders, instead of grouping them all under the conglomerate LGBTQIA+.⁵⁷

Representation in the rest of the legal profession can also be studied. In the judiciary, few statistics are available. At the top, among the nine United States Supreme Court Justices, three are women—one of whom identifies as Latina—and one is a Black man. Women and people of color remain underrepresented. Diversity in State Supreme Courts was studied in a 2020 report published by the Brennan Center.⁵⁸ Among the State Supreme Court Justices, 55% self-identify as White men, 29% as White women, 8% as men of color, and 7% as women of color.⁵⁹ The report shows that twenty-three states have an all-White bench,⁶⁰ while six states have a percentage of people of color higher than the percentage of their representation in the state population.⁶¹ California is one of those six states: with 71% people of color on the bench versus 63% of the State’s population self-identify as people of color. More generally, the 2020 BLS’s statistics present statistics on judges, magistrates, or other judicial workers: 53.9% self-identify as women, 74.4% as White, 16% as Black, 5.7% as Asian, and 6.2% as Hispanic.⁶² On the federal side, among all the Article III sitting judges, 80.1% self-identify as White, 27.6% as women, and 6.9% as women of color.⁶³

In the public sector and government, we must first note that there are only 10 women attorneys general and 10 attorneys general of color in the fifty states and the District of Columbia.⁶⁴ Beyond this, data remains unfortunately much more limited. The few available numbers relate to the whole public organization instead of the individuals employed in a legal profession. Using the NALP directory, it is possible to find out that of the 15,836 attorneys employed in 2020 at nine public entities, 43% self-identify as White men, 33% as white women, 7.70% as men of color, 10.22% as women of color, and 0.10% as LGBTQIA+.⁶⁵ However, these numbers only represent a small sample.

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2. Persistent Issues in the Legal Profession

Studying the state of diversity and inclusion within the legal profession is not only about statistics. While it shows that entry in the profession remains low for diverse talent that is only one side of the problem. Another essential side of the problem is culture. Specifically, one must study whether each individual currently in the profession feels valued, accepted, respected, and that they have an equal opportunity to grow, regardless of their differences. If they doubt that any of these elements apply to them, there is a great chance that the organization is not fully committed to enforcing an inclusive culture. In this regard, diverse talent often reports that a few persistent issues within the legal professions contribute to them not feeling like they belong.

At the top of the concerns is the persistent lack of diverse leadership, as the statistics have previously confirmed. In the words of Deborah L. Rhode and Lucy Buford Ricca, "within the American legal profession, diversity is widely embraced in principle but seldom realized in practice. [Underrepresented communities] are grossly underrepresented at the top and overrepresented at the bottom."⁶⁶ An insufficiently diverse leadership makes diverse talent feel they do not belong—diversity breeds diversity. It also makes them assume that they are less likely to grow and access these positions. These feelings are intensified when leadership does not know how to manage a diverse workforce. The ABA’s Commission on Women in the Profession released in 2020 is a national study focused on women of color pursuing legal careers.⁶⁷ In the pool of women of color surveyed, only 19% believed supervising attorneys were trained on managing a diverse workforce, and 23% believed that supervising attorneys were held accountable for developing and advancing diverse attorneys.⁶⁸

Pay gaps are another persistent issue that affects the legal profession. 2020 BLS’s statistics showed that, on average, men lawyers earn $2,324 per week while women lawyers earn $1,665 for the same amount of time. The gap is larger when speaking of the legal occupations in general, where men earn on average $2,275 per week while women earn $1,252 for the same amount of time.⁶⁹ The BLS does not provide similar statistics for other underrepresented communities in the legal profession.

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Diverse talent are often disappointed with the distribution of client assignments within a law firm. They frequently declare they are not sufficiently assigned with cases likely to require more billable hours, resulting in more generous rewards, or significantly growing their legal skills.⁷⁰ Fewer assignments reduce their visibility and ultimately their chance to be promoted.

Bias and stereotypes affect diverse talent. Too often, women of color are assumed not to be the lawyer in the room and continue to be confused for custodial, administrative, or courtroom staff.⁷¹ In general, women of color witness a work environment that remains hostile. Women of color report not being taken as serious contenders for promotions, and continue to observe men perpetuating stereotypes towards them. For instance, Black women attorneys may be seen as "pushy and aggressive when offering a different path, even if it is more viable."⁷² Asian women attorneys may be seen as "docile, quiet, and conflict adverse."⁷³

All of these persistent issues in the legal profession may directly or indirectly cause diverse talent to leave their organizations. Diverse workforce suffers from these daily microaggressions. It requires them to devote energy to overcome these issues. Most diverse talent feel they constantly need to prove they have a right to be where they are. Others feel they continuously need to sever fundamental parts of who they are so that others do not feel uncomfortable in their presence. Mostly, they feel they need to be "excellent," and they cannot make mistakes.⁷⁴

B. The Insufficient Demographic Data in the Antitrust Practice

1. A Practice Area Assumed Not to Be Diverse

While statistics on lawyers and the whole legal profession are readily available, statistics by practice areas remain hard to find. This lack of data applies to antitrust, a practice area that, as Dr. Bruce Hoffman declared during the recent Golden State Institute, has a "reputation of [being] one of the least diverse in the bar."⁷⁵

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Although very limited, the numbers available to evaluate diversity within the antitrust bar tend to confirm this assertion. For example, Global Competition Review (GCR), a worldwide law journal focused on competition and antitrust, publishes every year the 100 best law firms in antitrust practice in a list called the "GCR 100" or "Global Elite." When surveyed, law firms provide information about their antitrust specialists. In 2013, GCR published the fourth edition of their "Women in Antitrust" feature. Using the information received from their "Global Elite" pool, GCR profiles 100 women who contributed to antitrust, including private practitioners, enforcers, in-house counsel, economists, and academics.⁷⁶ GCR’s former contributor Katy Oglethorpe indicated that within their Global Elite pool, "women nearly always [constitute] around half of the associate numbers" in the competition practices, but "the proportion of female competition partners drops to an average of just 20 percent."⁷⁷ The same document reports statistics on women’s representation in antitrust agencies.⁷⁸ For example, the FTC in 2013 was 48% women, but only 35% of the senior employees were women. The European Commission was 51% of women, but only 23% were in senior positions. Regrettably, the feature does not report on other diversity issues. It is hoped that the subject will be tackled in their 6th edition expected later this year.

Another example of available data comes from the New York State Bar Association (NYSBA). The NYSBA published in 2017 the seventh edition of their diversity report card, which includes reports by sections. Based on the few answers received from the lawyers surveyed, the NYSBA reports that the Antitrust Section has a higher percentage of women "as Leaders and Executive Committee Members as compared to NYSBA as a whole, 45%, and 43% respectively."⁷⁹ Without giving numbers for communities other than women, the report mentions that "racial diversity in its general membership and leadership should be a specific goal for this section." The Section, praised for their actions towards diversity and inclusion, recognized that antitrust law is "a practice area that . . . requires more efforts to attract attorneys of color and from other diverse backgrounds."⁸⁰ That full results were not released is regrettable, and so is the fact that the NYSBA did not publish a new diversity report card since 2017.

A final example of available data comes from the Antitrust Law Section of the American Bar Association (ABA), which created a diversity committee named "Diversity. Advanced."⁸¹ This committee aims to increase diverse representation within the Section, make the Section’s diverse attorneys more visible, and facilitate their networking. To reach these goals, the committee offers for example, a mentorship program. The committee surveyed the program members—consisting of 65 mentors, 22 mentees, and 54 law students—and included questions about diversity. The contrast between the mentors’ answers and prospective mentees’ answers was such that the committee used the results in their mission statement. They found that "44% of the law students and 50% of the attorney/economist requesting mentors identified themselves as racially diverse" while on the mentor side "only 14% identified as racially diverse." The survey also revealed that "8% of the law students and 9% of the attorney/economists requesting mentors identified themselves as members of the LGBTQIA+ community," while no mentors at all self-identified as LGBTQIA+. Although the people surveyed only represent a portion of the Section, this survey is consistent with the view that current antitrust practitioners are largely non-diverse.

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2. Limited Arguments Explaining the Lack of Diversity in Antitrust Practice

A few arguments are usually advanced to explain why there is not more diversity in antitrust practice. In their answer to the NYSBA’s survey, the Antitrust Section mentioned that antitrust is often "viewed by law students and newer lawyers as more complex and inaccessible than other disciplines."⁸² Students may also falsely believe that they cannot access the antitrust practice because they did not take an antitrust class during law school, or economics courses during their undergraduate program. Hiring practitioners also mention that they do not find sufficient diversity in applicant pools.⁸³

However, these arguments appear short-sighted as they focus on the wrong side of the problem. If the antitrust practice is not diverse, it is not on the people who are not currently practicing antitrust. The lack of diversity within the profession may as well be due to the inaction of current antitrust practitioners. If there are not enough diverse applicants in the pool of candidates for a position, the hiring firm should devote resources to finding diverse talent. If there are not enough people interested in antitrust, current practitioners should increase their public presence. Visibility and networking are crucial in attracting diverse talent. As mentioned by John Gibson during the latest Golden State Institute, there has not been "a lot of discussion about antitrust . . . being a hot area for . . . an attorney of color."⁸⁴ In terms of race, the absence of a widely known representation of people of color in the antitrust bar highly reduces its visibility. In this regard, diverse attorneys are less likely to find a sponsor, mentor, or role model being an antitrust practitioner.

The absence of diversity in the antitrust bar is all the more surprising as several elements could make this practice a champion in this department.

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IV. THE ANTITRUST PRACTICE SHOULD CHAMPION DIVERSITY AND INCLUSION

A. The Antitrust Practice as a Tool to Fight Racism and Social Injustice

According to the US Department of Justice, antitrust laws are enforced to "protect economic freedom and opportunity by promoting free and fair competition in the marketplace."⁸⁵ In their own words, competition is said to "[benefit] American consumers through lower prices, better quality, and greater choice."⁸⁶ Each of these elements contributes to promoting "consumer welfare," a standard that US courts use to motivate decisions in the enforcement of antitrust laws for decades, including the Supreme Court of the United States.⁸⁷ The protection and promotion of consumer welfare concern every individual, regardless of their differences. Everyone is likely to either be a consumer or a business owner during their life. Consequently, antitrust laws have an impact on everyone’s life and business. Recent developments in antitrust laws applied to digital markets should make this even more apparent. Based on this initial observation, there is no clear reason the practice of antitrust should be reserved to a specific community.

Further, antitrust laws may be utilized to reduce inequalities and fight racism. Consumer welfare is unlikely to be realized if discrimination, bias, unfair treatment, and disparity continue to exist and affect the market. Indeed, underrepresented communities appear to be impacted by competition laws both as consumers and business actors.

In a few instances, competition has been recognized to influence gender inequalities. For example, the "glass ceiling" women are often exposed to has been analogized to monopolization, a practice that deprives less powerful competitors of the ability to succeed on the merits.⁸⁸ In 2018, Chris Pike, Competition expert and member of the Directorate for Financial and Enterprises Affairs at the Organization for Economic Cooperation and Development (OECD), affirmed that competition policy could impact women as entrepreneurs, board members, and employees or consumers.⁸⁹ His study results have shown that barriers to entry in a profession—such as requiring the purchase of a license to practice, ownership of land, etc.—can reduce women’s presence in businesses as they have been for centuries excluded from access to capital.⁹⁰ They have also shown that women have different consumer experiences because businesses price discriminate on the basis of gender. While countries generally prohibit this practice, there are situations where businesses will "[set] different prices for slightly different versions of a product and [let] consumers self-select, thereby demonstrating their different willingness to pay."⁹¹ Antitrust practitioners may elect to combat these practices that have adverse effects on gender equality.

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Anticompetitive practices also have disproportionate effects on people of color. Former Vice-President of Strategy and Policy at the Roosevelt Institute, Nell Abernathy, exposed some of these practices during a presentation to the Congressional Antitrust Caucus, using the examples of price discrimination and disinvestment.⁹² Historically, residents in segregated neighborhoods have lower incomes and are less likely to have access to upscale, good, and fair services. Statistically, in the US, people of color are most likely to live in segregated neighborhoods. Studies have shown that mortgage and credit lenders target these neighborhoods to sell a greater amount of subprime loans at higher costs and lower quality.⁹³ Therefore, price discrimination towards segregated neighborhoods adversely affected people of color. The same neighborhoods are suffering from disinvestment. Nell Abernathy here uses the examples of the grocery store deserts and broadband access development. Reduction of competition in the grocery store market caused a few local community-based markets to close. In parallel, major grocery chains no longer invest in low-income neighborhoods—where revenues are lower. In consequence, these neighborhoods have reduced access to grocery stores, a phenomenon also reported by the US Department of Agriculture.⁹⁴ Similarly, low-income neighborhoods are experiencing reduced internet speed due to lower investments from telecommunications providers.⁹⁵ Disinvestments in low-income neighborhoods resulted in adverse effects on people of color.

More recently, another anticipative practice had adverse effects on people of color, this time on the labor market. In research conducted in 2019, Orly Lobel, Professor of Law at the University of San Diego School of Law, has established that restrictive covenants in employment contracts—such as non-compete and no-poaching clauses—were perpetuating wage gaps and inequalities. Orly Lobel explains that competition between hiring organizations improve work conditions, social relations at work, and wages. By reducing competition, these clauses have adverse effects on people of color, who count on mobility to "eradicate existing wage gaps" by leveraging external offers, or find a "workplace that values diversity and is free of discrimination and hostility."⁹⁶ Antitrust practitioners may elect to combat these practices that have adverse effects on racial equality.

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"Antitrust can and should be deployed in the fight against racism," declared Rebecca Kelly Slaughter, recently appointed as Acting Chair of the Federal Trade Commission by President Joseph R. Biden.⁹⁷ In her view, "Antitrust law is clearly about economic structure, and economic structure in this country has a pretty profoundly racialized effect . . . There is a direct connection between the enforcement of antitrust law and the economic structures that tend to systemically under-privilege people of color."⁹⁸ Rebecca Kelly Slaughter explains that antitrust laws should not be value-neutral, because enforcement of antitrust laws can "either reinforce existing structural inequities or work to break them down." If we are comfortable prioritizing enforcement in other practice domains, such as choosing to prosecute particular behavior more than others, then there is no apparent reason why we could not do the same in enforcing antitrust laws. Antitrust enforcement agencies could use their "tools to ensure that markets are competitive and inuring to the benefit of historically underrepresented and economically disadvantaged consumers rather than incumbents."⁹⁹ The same call to action by antitrust enforcement authorities was made in 2018 by OECD’s Competition Commissioner Margrethe Vestager, who believes that "when fairness is at risk, we need authorities to stand up for what is right. Authorities that can weigh the evidence and restore fair markets."¹⁰⁰

With appropriate demographic data, antitrust practitioners could better understand where underrepresented communities are affected by anticompetitive practices, and as a result, increase their enforcement actions.

B. The Antitrust Practice Has Everything to Attract Diverse Talent

All of these elements considered, diverse attorneys aspiring to bring change to their communities may be interested in practicing antitrust law. When applying to law school, underrepresented applicants are often motivated to become lawyers in the hope of giving back to marginalized groups. The opportunity to drive change at the macrolevel, which impacts what happens at the microlevel, may encourage and attract young lawyers to the antitrust practice. This is true both in fighting for consumer welfare in general and combatting adverse effects towards diverse communities. In this regard, young diverse lawyers may be inspired by role models such as Rebecca Kelly Slaughter or Margrethe Vestager in utilizing antitrust laws to combat inequalities and persistent bias.

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More generally, the practice of antitrust law should be attractive to diverse lawyers for the challenges it offers. More than just practicing the law, antitrust practitioners regularly use economic and business knowledge. It is also a practice where lawyers are continually learning about the law and various industries involved in antitrust cases. A handful of character traits generally present in diverse attorneys are particularly useful to the practice of antitrust law: "collaboration, compromise, finesse, risk-taking, perseverance, creativity, resilience, and growth mindset."¹⁰¹ In addition to being curious, thoughtful, and having good judgment, these traits can make an individual a great antitrust lawyer.

Additionally, antitrust and competition laws are enforced at the national, international, and supranational levels. More than a hundred and twenty countries have adopted competition laws, and therefore there are lawyers in the world practicing antitrust. Legal departments in organizations doing business abroad, and law firms having such clients, should seriously consider international talent to fulfill positions in competition law. Indeed, any international lawyer coming to the United States carries their international experience, background, and culture. As such, LL.M. attorneys barred in any state should be considered as great assets for antitrust positions.

If diverse talent should be attracted to join the antitrust practice, organizations should double their efforts to promote diversity and inclusion.

V. RECOMMENDED ACTIONS TO ENHANCE DIVERSE REPRESENTATION IN THE LEGAL PROFESSION

A. Series of Recommendations for Employers

A growing number of organizations have implemented over the recent years and months diversity and inclusion programs. Efforts in this area must be commended, as everyone continuously learns how to navigate through and wrestles with the details of such a sensitive and difficult subject. The legal profession, which remains strongly non-diverse, must strive to make more noticeable progress. Despite early signs of improvement, there is still a lot of work to do. If organizations are consistent in their commitment to overcome this issue, progress may come more rapidly. The following are recommendations to improve diversity and inclusion within legal organizations. Even if your organization has already implemented a program, consider using these recommendations and ideas to increase or further reinforce your firm’s diversity and inclusion culture.

1. Revise the Firm’s Policy and Decision Process

The development of an internal diversity and inclusion program often begins with revising the firm’s policies to encompass diverse and inclusive language. They should state values and best practices employees are expected to follow and respect. The policies may also describe how diverse talent face microaggressions every day, and what people can do to suppress them. A simple list of values will not be enough to address these issues. Employees should know what they have to do when facing adverse behavior. The policy should also demand concrete actions to reduce bias and stereotypes from employees and clients. Thus, the policy ought to mention how the workforce is expected to interact when encountering non-inclusive behaviors from clients.

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In revising the policy, firms should attentively listen to each community’s concerns. Indeed, the policies should not make generalizations and use an intersectional approach to diversity. Each community has its own concerns and specific needs. The concerns of women of color differ from that of White women. Further, a woman who self-identifies as Asian does not have the same concerns as a woman who self-identifies as Black. All in all, the policy should help shape a safer and more inclusive work environment for diverse talent.

The policy revision should go further than only speaking about values and behavior. Firms must review their decisions and advancements processes. They also should reconsider who is currently making the decisions. Underrepresented communities should have a seat at the table. An inclusive culture requires that everyone has a real equal opportunity to grow. For this, diverse people must have a seat at the table. The process must be fair, objective, and as transparent as possible. It applies to performance evaluations, compensation, and any additional rewards: objective criteria should be used to consider who should be rewarded and why. It also applies to case assignments: objective criteria should be used in deciding who should work on a case and why. However, firms must cease to use diverse talent in cases simply where it will make the firm look good.

2. Make Accountability a Priority

Among the elements that make a diversity and inclusion program effective, accountability should be prioritized. As lawyers, we should know better than anyone else that failing to follow guidelines has consequences. The organization and its employees should be held accountable for their actions or inactions towards diversity and inclusion.

It is difficult to imagine a business where employees’ work performance would not be tracked and evaluated according to objectives. If the employee does not perform well, they face the consequences. Similarly, if the employee performs well, they should be rewarded. Diversity and inclusion should be a goal for the business prioritized like any other one—if not a greater one.

Organizations are therefore encouraged to set reasonable performance goals for a selected period, track progress through the period, and evaluate at the end of the period whether the objectives have been achieved. The progress should be assessed for each level of the organization: for the business itself, for each department, and for employees. Efficient performance tracking requires collecting data before, during, and at the end of the period. However, it is essential to remember that accountability is not always negative. It is not only about sanctioning failures to follow guidelines: it also means rewarding when goals are reached or exceeded. Consequently, accountability incentivizes the workforce and the organization to comply with the firm’s policies, ultimately favoring an inclusive culture.

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3. Increase Relevant and Targeted Training

Like any compliance program, conducting training in diversity and inclusion plays an important role in reminding employees of their roles and responsibilities. It also helps raise awareness of the firm’s policy and combats unconscious biases. It is also a great place to discuss the affirmative actions in the organization that worked, and those that did not. Role-plays can be used to better understand what behaviors should be avoided and which ones should be compulsory. Everyone should be invited to share about situations where they felt isolated or witnessed another person being excluded. They should express how they felt and how they wished people would have helped. Training can be as frequent as required, but it should at least be conducted once a year. Training should also be designed depending on the audience. For example, training designed for leaders should tackle subjects such as managing and staying connected with diverse talent. They should know when they need to stand up and advocate for diverse talent. They should also know when they need to listen and be an ally. In the same manner, leaders should also understand how diversity and inclusion can make a difference for them too.

4. Support in the Firm: Mentorship and Sponsorship

Everyone at work should feel supported by their peers. This means ensuring more senior employees are accessible. Firms should foster a safe work environment where people do not fear to reach out, ask questions, or be included in more work.

It also means ensuring pairing senior employees with more junior employees. As mentioned before, role models play significant roles for diverse talent. For this, firms are encouraged to implement mentorship or sponsorship programs. Finding a mentor or sponsor is often seen as difficult for diverse talent, even if they are said to be the persons who most likely have a sponsor or mentor.¹⁰² At the recent Golden State Institute, John Gibson explained the difference between mentorship and sponsorship. In the first situation, mentors are "offering you advice and being helpful."¹⁰³ They help young lawyers navigate the firm’s culture and grow their legal skills. Sponsors are more engaged than mentors. In John Gibson’s words, sponsorship is a "really holistic investment in the protégé. It includes the sponsor using [their] contacts and influence for the benefit of the protégé."¹⁰⁴ It can include a careful review of the protégé’s work, an introduction to clients, or even endorsing the protégé for a promotion. Both mentorship and sponsorship programs should be encouraged by law firms to help diverse talent grow within the organization. These programs also increase their feeling of belonging to the firm and the profession.

Further, firms should also encourage diverse leaders to be a voice for their community. They should avail themselves for public interventions or write articles. Diverse leaders have a duty to be visible and inspire junior crowds. In this manner, they may become role models and show that future diverse attorneys may later become leaders in a law firm too.

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5. Show Your Diverse Talent You Care About Them

Firms should also undertake measures to show they genuinely care about their diverse talent. There is no perfect way to do this, but a few actions can help diverse talent feel they will receive the attention they deserve. For instance, if finances allow, the firm should hire or appoint a person or even a team responsible for developing and fostering an inclusive culture within the organization—such as a Director of Diversity and Inclusion. More than a title and position, it shows that at least one person’s full-time job is to ensure diverse talent continues to feel welcome and that both diversity and inclusion are a priority for the firm. Having a person or a group of persons in charge of diversity and inclusion allows one to spend more time developing considerable actions. This can include putting in place benefits that target specific communities, such as the reimbursement of transition-related procedures for transgender, or other recruiting tools like diversity fellowships.

Though a single person or a single team cannot be responsible for diversity and inclusion at the firm on their own. Every leader needs to participate in fostering an inclusive culture. Firms should develop and promote safe forums where underrepresented communities can express themselves and network within the firm, such as Employee Resource Groups. These groups are an excellent tool for communities to gather, support each other, share their experience and reflect on what could be done better in the firm. They are also a great interface between communities and leadership. The group as a whole or their spokespersons should regularly give leaders feedback on how the firm is currently doing and what else could be done.

6. Refrain from Hiring Third-Party Agencies for Recruitment That Do Not Support True Diversity and Inclusion

Finally, if an organization publicly displays its attachment to a diverse and inclusive culture, it must refrain from hiring third-party companies that do not share the same values. This includes recruiting and staffing companies. Firms should ensure their recruiting partners do not automatically reject candidates because they failed to pass the bar multiple times, they are entry level or laterals with poor law school performance, or they graduated from third and fourth-tier law schools with average academic performance. Similarly, they should not automatically exclude candidates coming from in-house, the government, or with no law firm experience at all. It goes without saying that this mindset is anything but inclusive.

Using these patterns, recruiters admit utilizing bias and stereotypes in choosing who deserves to join a law firm. Because a candidate did not follow the traditional path, it is assumed they are unlikely to succeed in a major law firm. These preconceived ideas have an adverse effect on diverse talent, particularly people of color. For instance, the recruiter assumes that bad performance in law school was due to a lack of competence, while it might actually be due to other social, familial or financial factors. Admission to a third and fourth-tier law school may not have been a personal choice but one forced by society. Finally, diverse talent often have not been able to be hired in a law firm after graduation. Because their first experience was not in a law firm, the recruiter here would bar the diverse talent from having a chance to be considered. These practices do not favor social justice, diversity, and inclusion.

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B. Series of Recommendations for Attorney and Bar Associations

1. Collect Additional Data by Practice Area

Finally, there are a few suggestions directed to legal professional associations. First, lawyers’ associations such as the American Bar Association or the California Lawyers Association should continue promoting diversity and inclusion in the legal profession. Using their membership database, associations should conduct additional demographic census by sections, as the New York State Bar Association did with their 2017 Diversity report card.¹⁰⁵ The results obtained would help target practice areas where improvement is needed. However, because attorneys do not always become members of lawyers’ associations, a step further could be considered at the State Bar level. Currently, the State Bar of California conducts an attorney census survey every year "to gather demographic and employment data from the state’s licensees," which includes "questions on demographic characteristics, including race, ethnicity, gender, sexual orientation, disability, and veteran’s status. The census also asks questions about employment, workplace environment, and issues key to recruitment, advancement, and retention."¹⁰⁶ Based on the census results, the State Bar published in 2019 for the first time a Diversity report card.¹⁰⁷ The report will be updated yearly. This effort should be commended, as it offers excellent perspectives on the state of diversity among California attorneys. However, the State Bar should add a question about attorneys’ practice areas. Licensees could be invited to either check from a list five areas they practice the most, or all the areas they consider practicing at least 10% of their time. Thanks to this additional information, the State Bar would be able to provide statistics by practice for all surveyed licensees.

2. Make Diversity a Priority in CLE

State Bars should also consider increasing expectations from attorneys regarding diversity and inclusion. This starts with requiring attorneys in the whole country to attend diversity, inclusion, and elimination of bias training. Currently, only seven State Bars—California, Illinois, Missouri, New Jersey, New York, Oregon, and Vermont—require attorneys to dedicate an amount of Continuing Legal Education (CLE) credits to diversity, inclusion, and elimination of bias training. In Florida and Iowa, attorneys are also required to dedicate CLE credits to diversity, but contrary to the seven other states, it is mixed with other subjects (such as attorney wellness). By requiring attorneys to dedicate CLE credits to diversity and inclusion training, state bars would contribute to raising awareness in the profession. Thus, the state bars in the forty-one other states and the District of Columbia should be encouraged to implement this requirement.

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3. Revise Attorneys’ Rules of Professional Responsibility

Finally, state bars may consider revising their rules of professional responsibility to include affirmative duties towards diversity and inclusion. Currently, no states have ethical rules requiring attorneys to support diversity and inclusion. Generally, lawyers are only prohibited from engaging in discriminatory conduct, harassment, and retaliation—such as current Rule 8.4.1 of the California Rules of Professional Conduct,¹⁰⁸ and former rule 2-400.¹⁰⁹ In England and Wales, barristers have a few ethical duties to advance equality and inclusion in the profession explicitly described in their code of conduct. For example, they are required to "take reasonable steps to ensure that in relation to [their] chambers or [Bar Standards Board (BSB)] entity: (1) there is in force a written statement of policy on equality and diversity; and (2) there is in force a written plan implementing that policy."¹¹⁰ A third element requires barristers to comply with a few other conditions, such as appointing at least one equality and diversity officer, engaging in training, recruiting using fair and objective criteria, regularly monitoring equality and diversity within the chamber or BSB entity, including in terms of case assignments, offering flexible working and reasonable adjustments, offering parental leave to everyone, collecting data, etc.¹¹¹ The BSB’s code of conduct could be an inspiration for state bars in the United States to revise their rules of professional responsibility. They can either create an explicit and detailed duty to support diversity and inclusion—such as the BSB one, or otherwise create an implicit duty to promote liberty, justice, and inclusion for all.

VI. CONCLUSION

This article shows that there is no unique diversity approach. As a concept, it may be understood in various ways. In North America, it generally is the recognition, acceptance, and respect of every individual’s uniqueness and differences. However, respecting others’ differences is also respecting their interpretation of diversity. It is essential to engage in conversations to understand people’s experiences and beliefs to address diversity in a better way. It is also necessary to promote an inclusive culture so that everyone feels safe to be their true self. Encouraging both diversity and inclusion is likely to make an organization more competitive.

Demographic statistics confirms that the legal profession remains significantly non-diverse despite yearly progress. Persistent issues in organizations, including bias and stereotypes, may be responsible for pushing diverse talent out of their firms and away from the profession. This assessment is consistent both for the whole legal profession and the antitrust bar that maintains a reputation of being essentially composed of senior white men. Antitrust practitioners should look for diverse talent and encourage them to join their practice. This article develops various reasons to motivate diverse talent to join the antitrust bar. As an instrument currently utilized to reach consumer welfare, antitrust enforcement could also help fight against racism and inequalities. Given the multiple challenges antitrust practitioners face, diverse talent appears to be ideal candidates for the antitrust practice.

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While not presenting an exhaustive list of essential elements making an organization’s diversity and inclusion program effective, the recommendations developed in this article should inspire firms to increase their efforts. Firms should hold their employees and the whole organization accountable for fostering an inclusive culture. They ought to ensure diverse talent get the support they need. They also train leaders to manage diverse talent better. They should generally engage in conversations to better address diverse talent needs.

Similarly, lawyers’ associations and State Bars should continue their efforts to promote the importance of diversity and inclusion. Demographic data collection by practice area would help assess where progress is needed. Finally, State bars could consider a revision of attorneys’ codes of conduct and insert duties to promote diversity and inclusion in the legal profession.

As Supreme Court Justice Brennan said in Keyishian v. Board of Regents, the "nation’s future depends upon leaders trained through wide exposure."¹¹² Leaders must understand their roles and responsibilities. As more senior leaders are approaching retirement, a younger and more inclusive generation is about to take their place. Genuinely more passionate about this subject, new generations are also recognized as "more ethnically and racially diverse."¹¹³ Demographer William H. Frey declared "racial diversity will be the most defining and impactful characteristic of the Millennial generation."¹¹⁴ The following generation, the even younger Generation Z, "represents the leading edge of the country’s changing racial and ethnic makeup . . . One-in-four Gen Zers are Hispanic, 14% are black, 6% are Asian, and 5% are some other race or two or more races."¹¹⁵Aspiring to work in organizations with an inclusive culture, Millennials and Gen Zers expect more than intentions: they expect actions. Thus, their increasing presence in the workplace will profoundly change the workforce’s mindset.

This predicts significant changes in the years to come . . ..

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Notes:

^1. Anthony Leon is an attorney, currently working in-house in San Francisco, CA. After receiving his initial legal education in France, Anthony joined the legal department of the Louvre Museum in Paris, France. Anthony then obtained an LL.M. from the University of California, Hastings College of the Law, and passed both the New York and California bar exams. Anthony’s practice includes compliance, antitrust, business and corporate law.

^2. Labor Force Statistics from the Current Population Survey: Employed persons by detailed occupation, sex, race, and Hispanic or Latino ethnicity, U.S. Dep’t of Labor, Bureau of Lab. Statistics, https://www.bls.gov/cps/cpsaat11.htm (last modified January 22, 2021).

^3. Deborah L. Rhode and Lucy Buford Ricca, Diversity in the Legal Profession: Perspectives from Managing Partners and General Counsel, 83 Fordham L. Rev. 2483, 2486 (2015).

^4. See Pinar Karaca-Mandic, Archelle Georgiou, & Soumya Sen, Assessment of COVID-19 Hospitalizations by Race/Ethnicity in 12 States, JAMA Internal Med. 131, 134 (2021) (the research found "disproportionately high COVID-19 hospitalizations for the Black population" and "higher odds of hospitalization in non-Hispanic Black individuals compared with non-Hispanic White individuals"); see also Elise Gould & Valerie Wilson, Black workers face two of the most lethal preexisting conditions for coronavirus—racism and economic inequality, Econ. Policy Inst. (June 1, 2020), https://www.epi.org/publication/black-workers-covid/ (racial and economic inequality leave workers of color with few good options for protecting both their health and economic well-being).

^5. See Kathleen Ronayne & Michael Kunzelman, Trump to far-right extremists: ‘Stand back and stand by’, AP News (Sept. 30, 2020), https://apnews.com/article/election-2020-joe-biden-race-and-ethnicity-donald-trump-chris-wallace-0b32339da25fbc9e8b7c7c7066a1db0f (President Trump refused to publicly condemn white supremacist groups and their role in violence during 2020 social unrests, and called Proud Boys, a far-right extremist group, to "stand back and stand by").

^6. See Juana Summers, Trump Push To Invalidate Votes In Heavily Black Cities Alarms Civil Rights Groups, NPR (Nov. 24, 2020), https://www.npr.org/2020/11/24/938187233/trump-push-to-invalidate-votes-in-heavily-black-cities-alarms-civil-rights-group (Trump claims on voter fraud principally targeted Detroit, Philadelphia and Atlanta, cities historically with a higher number of Black voters).

^7. See Erik Bleich, Race Policy in France, Brookings Inst. (May 1, 2001), http://brook.gs/2bVQ6tx.

^8. See Norimitsu Onishi, A Racial Awakening in France, Where Race Is a Taboo Topic, The N.Y. Times (July 14, 2020), https://www.nytimes.com/2020/07/14/world/europe/france-racism-universalism.html (In France, race is a taboo topic in a society where the overwhelming majority aspires to a colorblind universalism).

^9. 1958 Const. 1 (Fr.) ("France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion.").

^10. Loi 2010-1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public (1) [Law 2010-1192 of October 11, 2010 on the Act prohibiting concealment of the face in public space], Journal Officiel de la RÉpublique FranÇaise [J.O.] [Official Gazette of France], Mar. 24, 2020, (Fr.) ("Nul ne peut, dans l’espace public, porter une tenue destinée à dissimuler son visage." ["No one is allowed, in a public space, to wear an outfit meant to conceal their face."]).

^11. Diversity, Merriam-Webster, https://www.merriam-webster.com/dictionary/diversity (last visited Feb. 25, 2021).

^12. Id.

^13. R. Roosevelt Thomas Jr, Redefining Diversity 5 (1996).

^14. See Conseil constitutionnel [CC] [Constitutional Court] decision No. 2007-557DC, Nov. 15, 2007, Rec. 29 (Fr.) (The Constitutional Council recognized that collect and process data necessary for carrying out studies regarding the diversity of origin of peoples, discrimination and integration may be done in an objective manner, but infringes Article 1 of the Constitution of France).

^15. See Bleich, supra note 7.

^16. Loi 78-17 du 6 janvier 1978 relative à l’informatique, aux fichiers et aux libertés [Law 78-17 of January 6, 1978 on information technology, data files and civil liberties] Journal Officiel de la RÉpublique FranÇaise [J.O.] [Official Gazette of France], Jan. 1, 2020, (Fr.).

^17. Lilla Farkas, Analysis and comparative review of equality data collection in the European Union: Data collection in the field of ethnicity, Publ’n Office of the European Union (2017), https://ec.europa.eu/newsroom/just/document.cfm?action=display&doc_id=45791.

^18. Id. at 7.

^19. See Labor Force Statistics from the Current Population Survey: Employed persons by detailed occupation, sex, race, and Hispanic or Latino ethnicity, supra note 2 ; see also U.S. Bureau of Labor Statistics Information Guide, U.S. Dep’t of Labor, Bureau of Lab. Statistics, at 18, 21, and 29, https://www.bls.gov/bls/bureau-of-labor-statistics-information-guide.pdf; see also Annual Business Survey, U.S. Census Bureau, https://www.census.gov/programs-surveys/abs/about.html (The Annual Business survey includes for example "employment by sex, ethnicity, race and veteran status") (last visited March 8, 2021).

^20. See 1790 Overview, U.S. Census Bureau https://www.census.gov/history/www/through_the_decades/overview/1790.html (last visited Feb. 25, 2021).

^21. Regents of the University of California v. Bakke, 438 U.S. 265, 312 (1978) ("The fourth goal asserted by petitioner is the attainment of a diverse student body. This clearly is a constitutionally permissible goal for an institution of higher education.").

^22. Equal Pay Act of 1963 § 6(d), 29 U.S.C. 206 (2016).

^23. Title VII of the Civil Rights Act of 1964 § 702, 42 U.S.C. 2000e-1 (1991).

^24. Age Discrimination in Employment Act of 1967 § 4, 29 U.S.C. 623 (2015).

^25. Pregnancy Discrimination Act of 1978, Pub. L. No. 95-555, 92 Stat. 2076 (codified at 42 U.S.C. § 2000e(k) (1982)).

^26. American with Disabilities Act (ADA) of 1990 § 202(a), 42 U.S.C. 12112(a) (2009).

^27. Id. § 202(b)(5).

^28. Civil Rights Act of 1991, Pub. L. No. 102-166 (codified at 42 U.S.C. § 1981) (1992)).

^29. Genetic Information Nondiscrimination Act of 2008 § 202, 42 U.S.C. § 2000ff-1.

^30. ADA Amendment Act of 2008, Pub. L. No. 110-325 (codified at 42 U.S.C. 12101) (2008)).

^31. Cal. Corp. Code. § 301.3 (2021).

^32. Cal. Corp. Code. § 301.4 (2021).

^33. See Cal. Corp. Code. §§ 301.3, 301.4, 2115.6 (2021).

^34. See Cal. Corp. Code. § 301.4(e)(1) (2021).

^35. Bakke, 438 U.S. at 312 n.48 (citing William Bowen, Admissions and the Relevance of Race, Princeton Alumni Weekly 7, 9 (Sept. 26, 1977)).

^36. See Why Diversity and Inclusion Matter: Quick Take, Catalyst (June 24, 2020), https://www.catalyst.org/research/why-diversity-and-inclusion-matter/.

^37. See The business case for change: Country snapshots, Int’l Labour Org., Women in Bus. and Mgmt. (May 22, 2019), https://www.ilo.org/wcmsp5/groups/public/—dgreports/—dcomm/—publ/documents/publication/wcms_702188.pdf.

^38. See Shelley Zalis, Inclusive ads are affecting consumer behavior, according to new research, Think with Google (Nov. 2019), https://www.thinkwithgoogle.com/future-of-marketing/management-and-culture/diversity-and-inclusion/thought-leadership-marketing-diversity-inclusion/ ("64% of the people surveyed said they took some sort of action after seeing an ad that they consider to be diverse or inclusive").

^39. See Cara C. Maurer and Israr Qureshi, Not Just Good for Her: A Temporal Analysis of the Dynamic Relationship Between Representation of Women and Collective Employee Turnover, Org. Studies (2019). See also Elissa L. Perry and Aitong Li, Diversity Climate in Organizations, Oxford Rsch. Encyclopedia of Bus. and Mgmt. (2020).

^40. See Rocío Lorenzo, Nicole Voigt, Karin Schetelig, Annika Zawadzki, Isabell M. Welpe, and Prisca Brosi, The Mix That Matters: Innovation Through Diversity, The Boston Consulting Grp. (Apr. 26, 2017), https://www.bcg.com/en-us/publications/2017/people-organization-leadership-talent-innovation-through-diversity-mix-that-matters.

^41. See Binay K. Adhikari, Anup Agrawal, and James Malm, Do Women Managers Keep Firms Out of Trouble? Evidence from Corporate Litigation and Policies, 67 J. of Acct. and Econ. 202, 202-225 (2019). See also Young Zik Shin, Jeung-Yoon Chang, Keyeongmin Jeon, and Hyunpyo Kim, Female Directors on the Board and Investment Efficiency: Evidence from Korea, 19 Asian Bus. & Mgmt. 438, 438479 (2019).

^42. See The business case for change: Country snapshots, supra note 37.

^43. See Astrid C. Homan, Dealing with Diversity in Workgroups: Preventing Problems and Promoting Potential, 13 Soc. and Personality Psychology Compass 1, 1-9 (2019). See also Dnika J. Travis, Emily Shaffer, and Jennifer Thorpe-Moscon, Report: Getting Real About Inclusive Leadership, Catalyst (Nov. 21, 2019), https://www.catalyst.org/research/inclusive-leadership-report/.

^44. See Why Diversity and Inclusion Matter: Quick Take, supra note 36.

^45. In re Robinhood Outage Ligitation, No. 20-CV-01626-JD, 2020 WL 7330596 (N.D. Cal. July 14, 2020).

^46. Id. at *2.

^47. Deborah L. Rhode, Law is the least diverse profession in the nation. And lawyers aren’t doing enough to change that, The Wash. Post (May 27, 2015), https://www.washingtonpost.com/posteverything/wp/2015/05/27/law-is-the-least- diverse-profession-in-the-nation-and-lawyers-arent-doing-enough-to-change-that/.

^48. Labor Force Statistics from the Current Population Survey: Employed persons by detailed occupation, sex, race, and Hispanic or Latino ethnicity, supra note 2.

^49. 2020 Report on Diversity in U.S. Law Firms, Nat’l Ass’n for Law Placement (NALP) (Feb. 2021), https://www.nalp.org/reportondiversity.

^50. Id. at 19 (Table 6), 26 (Table 9), 30 (Tables 11 and 12).

^51. Id. at 19 (Table 6), 28 (Table 10), 30 (Tables 11 and 12).

^52. Id. at 19 (Table 6), 26 (Table 9), 30 (Tables 11 and 12).

^53. Id. at 21 (Table 7).

^54. Id. at 30 (Tables 11 and 12).

^55. Id. at 23 (Table 8), 30 (Table 12).

^56. Id. at 17 (Table 2).

^57. See Bendita Cynthia Malakia, Being a B: Perspectives on Being a Bisexual Lawyer, Inst. for Inclusion in the Legal Profession (2019-2020), https://theiilp.wildapricot.org/resources/Documents/IILP_2019_FINAL_web.pdf (As a bisexual, the author regrets the lack of consideration to identities within the conglomerate LGBTQIA+).

^58. Alicia Bannon & Janna Adelstein, State Supreme Court Diversity—February 2020 Update, Brennan Ctr. for Justice (Feb. 20, 2020), https://www.brennancenter.org/our-work/research-reports/state-supreme-court-diversity-february-2020-update.

^59. Id.

^60. Id.

^61. Id.

^62. Labor Force Statistics from the Current Population Survey: Employed persons by detailed occupation, sex, race, and Hispanic or Latino ethnicity, supra note 2.

^63. Biographical Directory of Article III Federal Judges, 1789-present, Fed. Judicial Ctr., https://www.fjc.gov/history/judges/search/advanced-search (Search limited to sitting judges only and for any federal court).

^64. Find My AG, Nat’l Ass’n of Attorneys Gen., https://www.naag.org/find-my-ag (last visited Mar. 1, 2021).

^65. NALP Directory of Legal Employers, Nat’l Ass’n for Law Placement (NALP), available at https://www.nalpdirectory.com (Results compiled by searching employers being "government" and "public interest")(last visited March 2, 2021)

^66. Deborah L. Rhode & Lucy Buford Ricca, Diversity In The Legal Profession: Perspectives From Managing Partners And General Counsel, 83 Fordham L. Rev. 2483, 2483 (2015).

^67. Destiny Peery, Paulette Brown, and Eileen Letts, Left Out and Left Behind: The Hurdles, Hassles, and Heartaches of Achieving Long-Term Legal Careers for Women of Color, Am. Bar Ass’n Comm’n on Women in the Profession (2020), https://www.americanbar.org/content/dam/aba/administrative/women/leftoutleftbehind-int-f-web-061020-003.pdf.

^68. Id. at ix. The legal occupations categorized by BLS are: lawyers; judicial law clerks; judges, magistrates, and other judicial workers; paralegals and legal assistances; title examiners, abstractors and searchers; and legal support workers (all other).

^69. Median weekly earnings of full-time wage and salary workers by detailed occupation and sex, U.S. Dep’t of Labor, Bureau of Lab. Statistics, https://www.bls.gov/cps/cpsaat39.htm (last modified Jan. 22, 2021).

^70. Peery et al., supra note 67 at ix.

^71. Commission On Women In the Profession & Minority Corporate Counsel Association, You Can’t Change What You Can’t See: Interrupting Racial and Gender Bias in the Legal Profession, Am. Bar Ass’n (Feb. 13, 2019), https://www.americanbar.org/products/ecd/ebk/358942050/ ("Fifty-eight percent of women attorneys of color, and half of white women lawyers surveyed say they have been mistaken for administrative staff or janitors, according to the new study.").

^72. Peery et al., supra note 67 at 5.

^73. Peery et al., supra note 67 at 5.

^74. Brian J. Winterfeldt and Emily D. Murray, The Importance of Excellence for Diverse Attorneys, Inst. for Inclusion in the Legal Profession (2019-2020), https://theiilp.wildapricot.org/resources/Documents/IILP_2019_FINAL_web.pdf.

^75. D. Bruce Hoffman, Former Director, Bureau of Competition, Federal Trade Commission, Cleary Gottlieb Steen & Hamilton LLP, Panel at the 30th Annual Golden State Institute hosted by the California Lawyers Association: A Conversation About Diversity, Racism, and Equality in the Legal Profession (Oct. 29, 2020).

^76. Kathy Oglethorpe, Women in Antitrust, 16 Global Competition Rev. 5, 5 (2013).

^77. Id.

^78. Id.

^79. Committee on Diversity and Inclusion, 2017 Diversity Report Card Seventh Edition, N.Y. State Bar Ass’n (2017), https://nysba.org/NYSBA/Committees/Committee%20on%20Diversity%20and%20Inclusion/Reports/DiversityReportCardwAddendum.pdf.

^80. Id.

^81. See Diversity. Advanced Antitrust Law Section Committee, Am. Bar Ass’n, https://www.americanbar.org/groups/antitrust_law/committees/diversity-advanced/ (last visited Mar. 2, 2021).

^82. Committee on Diversity and Inclusion, supra note 79.

^83. See Deborah L. Rhode & Lucy Buford Ricca, supra note 66.

^84. John Gibson, Antitrust Litigation Partner, DLA Piper, Panel at the 30th Annual Golden State Institute hosted by the California Lawyers Association: A Conversation About Diversity, Racism, and Equality in the Legal Profession (Oct. 29, 2020).

^85. Mission, U.S. Dep’t of Justice Antitrust Div., https://www.justice.gov/atr/mission (last updated July 20, 2015).

^86. Id.

^87. See Cont’l T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977); Broad. Music, Inc. v. Columbia Broad. Sys, Inc., 441 U.S. 1 (1979); Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of Oklahoma, 468 U.S. 85 (1984); Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447 (1993); State Oil Co. v. Khan, 522 U.S. 3 (1997); Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004); Leegin Creative Leather Prod., Inc. v. PSKS, Inc., 551 U.S. 877 (2007).

^88. See Sally Hubbard & Washington Bytes, How Monopolies Make Gender Inequality Worse, Forbes (Dec. 20, 2017), https://www.forbes.com/sites/washingtonbytes/2017/12/20/how-monopolies-make-gender-inequality-worse-and-concentrated-economic-power-harms-women/?sh=4734de3d1b11.

^89. Chris Pike, What’s gender got to do with competition policy?, OECD On the Level (Mar. 2, 2018), https://oecdonthelevel.com/2018/03/02/whats-gender-got-to-do-with-competition-policy/.

^90. See Linda Scott, It’s time to end the male monopoly in international trade, Fin. Times (Sept. 20, 2020), https://www.ft.com/content/054847da-3e24-43af-91bc-b15f8fc00c3a.

^91. Chris Pike, supra note 89.

^92. Nell Abernathy, The Effects of Market Power on Women and People of Color, Roosevelt Inst. (Mar. 7, 2018), https://rooseveltinstitute.org/2018/03/07/the-effects-of-market-power-on-women-and-people-of-color/.

^93. See Jackelyn Hwang, Michael Hankinson, Kreg Steven Brown, Racial and Spatial Targeting: Segregation and Subprime Lending within and across Metropolitan Areas, 93 Soc. Forces 1081, 1081-1108 (2015).

^94. See Food Access Research Atlas – Documentation, U.S. Dep’t of Agric. Econ. Rsch. Serv., https://www.ers.usda.gov/data-products/food-access-research-atlas/documentation/ (last updated Oct. 31, 2019).

^95. See Digital Inequality and Low-Income Households, U.S. Dep’t of Hous. and Urban Dev., Off. of Policy Dev. and Rsch. (PD&R) (Fall 2016), https://www.huduser.gov/portal/periodicals/em/fall16/highlight2.html#title.

^96. Orly Lobel, Gentlemen Prefer Bonds: How Employers Fix the Talent Market, 59 Santa Clara L. Rev. 663 (2020).

^97. Rebecca Kelly Slaughter, Remarks of Commissioner Rebecca Kelly Slaughter at GCR Interactive: Women in Antitrust, Fed. Trade Comm’n (Nov. 17, 2020), https://www.ftc.gov/public-statements/2020/11/remarks-commissioner-slaughter-at-GCR-Interactive.

^98. Lauren Feiner, How FTC Commissioner Slaughter wants to make antitrust enforcement antiracist, CNBC (Sept. 26, 2020), https://www.cnbc.com/2020/09/26/ftc-commissioner-slaughter-on-making-antitrust-enforcement-antiracist.html.

^99. Rebecca Kelly Slaughter, supra note 97.

^100. See Margrethe Vestager, Exec. Vice President of the European Comm’n for A Eur. Fit for the Dig. Age, Keynote Address at the 17th OECD Forum on Competition (Nov. 29, 2018).

^101. Ruled by Reason: Antitrust and Diversity in the Plaintiffs’ Bar: A Conversation With Two Leading Private Enforcers, Am. Antitrust Inst. (Nov. 3, 2020), https://www.antitrustinstitute.org/work-product/antitrust-and-diversity-in-the-plaintiffs-bar-a-conversation-with-two-leading-private-enforcers/.

^102. See Report: Women of Color in U.S. Law Firms—Women of Color in Professional Services Series, Catalyst (July 15, 2009), https://www.catalyst.org/wp-content/uploads/2019/01/Women_of_Color_in_U.S._Law_Firms.pdf.

^103. John Gibson, supra note 84.

^104. Id.

^105. Committee on Diversity and Inclusion, supra note 79.

^106. See Promoting Inclusion & Diversity, The State Bar of Cal., https://www.calbar.ca.gov/About-Us/Our-Mission/Promoting-Inclusion-and-Diversity (last visited Mar. 3, 2021).

^107. See Carolina Almarante et al., Report Card on the Diversity of California’s Legal Profession, The State Bar of Cal. (July 20, 2020), https://www.calbar.ca.gov/Portals/0/documents/reports/State-Bar-Annual-Diversity-Report.pdf.

^108. See Rule 8.4.1 Prohibited Discrimination, Harassment and Retaliation (Rule Approved by the Supreme Court, Effective November 1, 2018), The State Bar of Cal., http://www.calbar.ca.gov/Portals/0/documents/rules/Rule_8.4.1-Exec_Summary-Redline.pdf (last visited Mar. 3, 2021).

^109. See Rule 2-400 Prohibited Discriminatory Conduct in a Law Practice, The State Bar of Cal., http://www.calbar.ca.gov/Attorneys/Conduct-Discipline/Rules/Rules-of-Professional-Conduct/Previous-Rules/Rule-2-400 (last visited Mar. 3, 2021).

^110. See Part 2: Code of Conduct, Rule C110, Bar Standards Bd., https://www.barstandardsboard.org.uk/uploads/assets/f0d114af-9c5a-4be4-9dbffa9f80b1e47f/8c50a665-79ee-4bfa-b36eb5c138798d72/Part-2-Code-of-Conduct18092019092228.pdf (last visited Mar. 3, 2021).

^111. Id.

^112. Keyishian v. Bd. of Regents of Univ. of State of N. Y., 385 U. S. 589, 603 (1967) ("Our Nation is deeply committed to safeguarding academic freedom which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment . . . The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, (rather) than through any kind of authoritative selection.’" (citing United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943), aff’d, 326 U.S. 1 (1945)).

^113. See Rochelle L. Ford et al., A Millennial Perspective on Diversity & Multiculturalism, Am. Advert. Fed’n Thought Leadership (May 20, 2017), https://silo.tips/download/a-millennial-perspective-on-diversity-multiculturalism.

^114. See William H. Frey, Diversity Defines the Millennial Generation, Brookings (June 28, 2016), https://www.brookings.edu/blog/the-avenue/2016/06/28/diversity-defines-the-millennial-generation/.

^115. See Kim Parker & Ruth Igielnik, On the Cusp of Adulthood and Facing an Uncertain Future: What We Know About Gen Z So Far, Pew Rsch. Ctr. (May 14, 2020), https://www.pewresearch.org/social-trends/2020/05/14/on-the-cusp-of-adulthood-and-facing-an-uncertain-future-what-we-know-about-gen-z-so-far-2/.