The Diversity Hire

By: Sukhmani K. Singh

It is no secret that there is a serious lack of diversity in the legal profession. The American Bar Association reported that in 2020, only 14.1% of all lawyers identified as Persons of Color. Also as of 2020, only 10.23% of Partners at law firms in the United States are Women and People of Color. The numbers only get lower when we begin to talk about lawyers who identify as LGBTQ+. Although the trend towards a more diverse workplace is rising, the momentum is slow. However, even the data in this area is not totally reliable since most state bars do not track race and ethnicity.

The reasoning for why diversity within firms and other areas of the law is so important has been discussed in great detail. When a firm reflects society, it enables attorneys the ability to better represent their clients. Not only do diverse teams make the job of “lawyering” easier, but it makes those who need legal representation more likely to seek it out when they know they can find someone who will understand them. It seems that many firms understand and recognize these benefits. Firms of great repute have largely taken it upon themselves to outwardly showcase their commitment to diversity, inclusion, and equity (DE&I). But are these firms truly committed to promoting diversity? Or are they merely using it as an advertising tactic?

Law firms are trying to encourage diversity in a variety of ways. Along with there being a stronger focus on hiring individuals from diverse backgrounds, firms are also issuing updated DE&I statements, appointing diversity chairs within the firm, working with diverse bar associations, creating mentorship programs, counting DE&I activities toward billable hours, and making sure to create a space where diverse cultures can be celebrated within the firm. Law students are probably most familiar with Diversity Fellowship and internship opportunities offered during the school year or summer. These internships are geared towards students who self-identify as diverse and are offered in an effort to equalize the playing field. The role they would be fulfilling is identical to that of a summer associateship. The only difference, it is labeled a diversity internship. A diversity hire if you will.

There is nothing inherently wrong about ensuring there is a seat at the table for historically underrepresented individuals. Reserving a “diversity” spot eliminates barriers that perfectly qualified diverse students often face. Harvard Business School released an article showcasing how when people of color mask their race during the application process by “whitening” their name and erasing any other reference to their race, they are more likely to land a job. Job listings that specifically call for students from diverse backgrounds eliminates the need to “whitewash” your resume, it instead empowers students to fully embrace their background. The problem remains though, a “Diversity Internship” is still in the “other” category. The “diversity associate” works alongside the other summer associates but has to carry the burden of being the diversity hire.

These diversity positions often require the same high level academic achievements that are required of the other summer associateships so there is no denying that whoever assumes this role fully belongs (diverse or not). But there is a real issue that must be talked about if we believe that the only way to prop up diverse students positions in big firms is to create positions designated for them. If they are just as qualified to assume the role of a typical summer associate, why not just give them that position? The fear becomes that if a student of color applies for both a summer associateship and a diversity summer associateship, despite their accolades, the chances of landing the diversity position are higher. Again, employment is employment but students of color in higher education already face constant criticism and doubt from peers, why give them the added burden of making them second guess whether they belong or whether they are just a quota to check a box?

A newer program that has been introduced to Arizona Law Schools, the Diversity Legal Writing program, allows students who self-identify as diverse to apply for a spring internship with participating firms. The application is GPA blind and simply requires a statement on diversity. The program offers a stipend of $4,000 to participating students. The program has been described as being akin to a typical summer associateship, except here you get paid one-tenth of what a summer associate would… not to mention there is no job guarantee. Many students criticize the program for being exploitative. Targeting minority students to come work at a big law firm for semester for a fraction of the pay with little to no opportunity of receiving an offer to return to the firm because by then these firms already have their summer associates hired. Although there are no published numbers, it only takes a few conversations with past participants of the program to learn that in the six or so years the program has ran, only a handful of students have been offered full-time employment from this program.

Another critique many students have of both the diversity summer associate positions and the Diversity Legal Writing Program is it allows for self-identified diversity. Basically, if you can think of anything that makes you unique, congratulations, you have a diversity statement. It is absolutely the case that diversity goes beyond racial diversity. Diversity includes gender identity, sexual orientation, socio-economic background, and even neurodivergence. But when we are speaking specifically about diversity in the legal profession, the harsh reality is that racial diversity is sorely lacking, and this is the most noticeable facially. Self-identified diversity invites anyone to apply if they can be creative enough and allows us to tiptoe around the tough conversation surrounding diversity. When diverse students see their cis-gendered white peers receive diversity positions it can be very discouraging and leads to many qualified students to not apply to the programs that were intended for them. Excluding certain persons from applying to diversity positions would be too radical for many firms. But when you allow people from already represented communities to compete against a minority student for a position specifically labeled “diversity”, you risk the same internal biases coming out that were aimed to be surprised with the creation of the diversity position. This current system of attempting to diversify the legal workforce my creating specific “diversity positions” do much more harm than good. It “others” students from diverse backgrounds and literally make them diversity hires. Not only this, but self-identified diversity gives rise to a larger applicant pool full of students who get real creative in trying to come up with ways in which they are diverse…. If firms and other employers are serious and addressing the lack of diversity in the workforce, they must allow for uncomfortable conversation.

Sukhmani graduated from Arizona State University with a BA in Political Science and a BA in Sustainability. She is now a 2L at Sandra Day O’Connor College of Law. Her legal interests are rooted in the intersection between sustainability and social justice, including access to clean affordable energy and advocating for the rights of local urban farmers. Outside of law school, Sukhmani enjoys exploring rural Arizona and buying books she will never read.