Coca-Cola debuted a new policy this year introducing a diversity quota for outside counsel it maintains, stating that it will only employ law firms that commit to delivering 15% of billed time from black lawyers, which is higher than the number of African Americans in the US population.
Coca-legal Cola’s department sent a letter to the company’s U.S. outside counsel on January 28 detailing the company’s new mandate that law firms “commit to at least 30 percent of each of billed associate and partner time from diverse lawyers, with at least half of those amounts coming from Black attorneys.”
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Over time, those criteria would become more strict, with the “ultimate aspiration” of “at least” 50% of billed time coming from “diverse” attorneys and 25% from black attorneys. Firms are required to collaborate with Coca-Cola to extend the quality to their current work.
African Americans make up about a third of the population of the United States. The number of black lawyers is even lower, with African American lawyers accounting for just 5% of all lawyers in the United States, according to the American Bar Association.
Failure to meet the diversity criteria on new legal engagements over the course of two quarterly evaluations could result in Coca-Cola cutting the firms’ pay by 30% for the new jobs, and repeated failure could result in firms no longer being considered for work with the large beverage corporation.
Coca-Cola would also incentivize law firms to meet diversity standards by making compliance “a major factor in deciding” whether or not firms are included on the company’s upcoming “preferred firms” panel. If an organization is unable to fulfill the diversity standards internally, the company encourages them to reach out and collaborate with outside companies.
In his letter to the company’s outside counsel, Bradley Gayton, senior vice president and general counsel, wrote, “I write you with a heavy heart.”
As shown by the “alarming number of new partner headshots” with a “obvious lack of diversity,” Gayton announced that Coca-previous Cola’s attempts to encourage diversity “are not working.”
He wrote, “We have a crisis on our hands” that necessitates “unique measures to accelerate the diversity of the legal profession.”
“It’s past time for us to stop celebrating good intentions and motives and start praising behavior and performance. In a statement accompanying the letter, Gayton indicated that he hopes Coca-law Cola’s firm partners “see this as an opportunity to affect meaningful structural change.”
Coca-scheme, Cola’s according to Hans Bader, a former civil rights lawyer who worked for the federal Office for Civil Rights, is “illegal.”
“Affirmative-action targets are meant to be tied to the available labor pool, which is smaller than the general population for skilled workers like legal jobs,” Bader said, citing the 1984 Supreme Court case Janowiak v. South Bend, which stressed that the skilled labor force, not the general population, is what matters in affirmative action.
Bader also pointed out that Coca-agenda Cola’s tends to be “a permanent requirement and aspiration,” which undermines the objective of affirmative action.
“Affirmative action targets are meant to be temporary, and used to ‘attain’ but not indefinitely ‘maintain’ ethnic balance,” Bader said, citing the Supreme Court’s decision in Steelworkers v. Weber in 1979, which ruled that the Civil Rights Act did not prohibit employers from favoring women and minorities.
Coca-scheme, Cola’s according to Bader, undoubtedly violates another statute that the Supreme Court “interpreted as flatly banning racial quotas” in 2003.
Coca-Cola has left itself open to racial discrimination lawsuits, according to retired attorney Paul Mirengoff, who wrote a blog for Power Line.
“Coke should rest easy knowing that no law firm is going to prosecute the company or its executives. Similarly, Mirengoff wrote, “no lawyer at one of these firms is likely to contest Coke’s practice.”