Trends in law firm DEI practices

Across industries, diversity, equity, and inclusion (DEI) initiatives are in flux. Following the Supreme Court’s opinion in Students for Fair Admission v. Harvard (SFFA), 600 U.S. 131 (2023), and growing anti-DEI backlash from some sectors, law firms are fielding questions from clients about how to continue promoting diversity and inclusion in the post-SFFA landscape. This raises the question: what are law firms themselves doing?

In SFFA, a landmark Supreme Court case from last term, the Court held that race-based affirmative action admissions programs violate the Equal Protection Clause of the Fourteenth Amendment even when administered by a private entity. Although SFFA analyzed this issue in the context of undergraduate admissions, observers were concerned that its holding could extend to affirmative action hiring programs. This concern was borne out after a series of lawsuits were filed against major law firms for allegedly discriminatory recruitment programs.

Amidst anti-DEI headwinds, law firms have found ways to promote DEI through a variety of efforts. DEI initiatives largely fall into two categories: recruitment and retention. On the recruitment side, many law firms continue to encourage applications from diverse candidates and have shifted the focus of their diversity programs in response to SFFA. Firms also remain committed to internal programs aimed at supporting, retaining, and promoting diverse talent.

Diversity fellowships

Major law firms have utilized diversity programs, often styled as “diversity fellowships,” to recruit first-year law students and even pre-law students. Successful applicants secure a coveted 1L Summer Associate position that often leads to 2L and postgraduate return offers. Many fellowships also grant students scholarships towards their legal education. Needless to say, entry to these programs is extremely competitive.

Before SFFA, law firms often expressly sought out underrepresented minority (URM) students. In this context, recruitment focused on students with characteristics underrepresented in big law compared to the population at large. These programs often focused on race, gender, sexual orientation, and other protected characteristics, and encouraged students to elaborate on their URM status in their application materials.

After SFFA, many firms have maintained and even expanded their DEI programs. But rather than focusing on diverse characteristics, many firms have revised their programs to focus on the diverse perspectives applicants may bring to the firm. Focusing on perspectives broadens the application pool, provided the students can explain what sets them apart. For example, some firms ask applicants about their commitment to DEI values, and others ask candidates to provide a personal statement about personal challenges they have overcome. These criteria provide a variety of holistic measures by which firms can continue to recruit diverse candidates.

Even after SFFA, then, any firm can continue to select exceptional candidates whose perspectives bring diversity to the firm and its culture. The focus on perspectives and life experiences is facially neutral as to a candidate’s characteristics yet permits law firms to seek students from a range of backgrounds. Broadening their recruitment criteria may even better fulfill firms’ goals of promoting DEI by fostering a greater sense of equity and inclusion among successful applicants.

Internal DEI initiatives

DEI does not stop at recruitment; many firms employ DEI-based retention and promotion initiatives to promote an equitable and inclusive culture. According to the National Association for Law Placement (NALP), in 2023, women made up the majority of law firm associates for the first time in history. Given that women are the slight majority in the United States as a whole, this was the first time that the associate class represented the population. However, work remains to be done, as women make up only 27.76% of partners—even fewer are women of color. It will take time and effort for these changes to percolate to leadership levels, but figures are improving largely due to DEI initiatives.

Bolstering internal retention efforts, many external organizations also continue to promote DEI within the legal profession. National organizations like NALP support DEI by providing comprehensive diversity statistics for the legal industry. State organizations, like the California State Bar and New York State Bar, also encourage DEI initiatives in their respective states by publishing diversity reports and recognizing firms for their DEI efforts.

Clients, too, continue to seek out firms that promote DEI and reflect their values. Research shows that diverse teams are better at problem solving, which works to the benefit of clients facing novel and challenging legal issues. Some clients seek out firms that are expressly committed to DEI efforts and recognize and reward firms that staff diverse teams on their matters and promote diverse attorneys to partnership and leadership positions.

Major law firms remain committed to their DEI initiatives and treat DEI as an integral part of their firm culture. Most firms offer internal affinity groups that provide mentorship, sponsorship, and networking opportunities. Some firms are doubling down and reaffirming their commitment to DEI, and many grant billable hours credit to encourage participation in DEI activities. Promoting diverse perspectives within a firm creates an inclusive network of attorneys that fosters growth, development, and attorney retention. The resilience of DEI initiatives in the face of recent challenges shows that firms can and will continue to prioritize diversity.