When will America's law firms and their clients come around to the idea that it is past time to choose their lawyers on the basis of their ability rather than their sex?

Title VII of the Civil Rights Act of 1964 forbids employers "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." See 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has held, for example, that a law firm must treat associates seeking to become partners in the firm equally without regard to their sex. See Hishon v. King & Spalding, 467 U.S. 69 (1984)(breach of promise to give "fair and equal" consideration to female candidate for partner a breach of Title VII.) Discrimination in work assignments, particularly as it affects promotion chances, has also been found to be discriminatory. See Palmer v. Baker, 905 F.2d 1544, 1547 (D.C. Cir. 1990).

. . . Not Even When the Clients Want Them To.

There is an old lawyer joke that labs have decided to experiment on lawyers rather than rats because lawyers are more common, the lab assistants won't become attached to them, and there are some things that even a rat will not do. Contrary to this little bit of folklore, however, the law and the Bar do set limits on what lawyers are allowed to do, whether the client wants them to do it or not. And one of those things that law firms are not allowed to do is engage in employment discrimination based on sex.

The question of whether a law firm is allowed to discriminate in work assignments because its clients request that it do so is not new to legal scholarship, and the answer would appear to be a resounding no. See Clare Tower Putnam, When Can a Law Firm Discriminate Among Its Own Employees to Meet a Client's Request? Reflections on the ACC's Call to Action, 9 U. PA. JOURNAL OF LABOR AND EMPLOYMENT LAW 657 (2004). Law firms are not allowed to flout the discrimination laws at a client's behest. Some state Bars have been quite explicit on this score. See, e.g. D.C. Rules of Prof'l Conduct r. 9.1.

Lawyers' clients have the right to determine the objectives of representation. (Model Rules of Prof'l Conduct r. 1.2). They also have the right to be consulted about the means to achieve those objectives, but that does not mean that they get to dictate to the lawyer what those means will be. See id. r. 1.2, 1.4. The comments to the American Bar Association's (ABA) Model Rules of Professional Conduct provide as follows:

In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail.
Id. cmt. 5. This division of responsibilities allows the client to set his own goals and the lawyer to exercise independent judgment regarding how to accomplish those goals. Although the lawyer does have a great deal of independence in how she achieves a client's goals — so long as she consults the client — the lawyer must still comply with the law and the ethical rules of the bar. If "the representation will result in violation of the rules of professional conduct or other law," then the lawyer must withdraw from the representation. Model Rule of Prof'l Conduct r. 1.16(a)(1).

No law firm is going to have an easy time showing that is "reasonably necessary" to assign a particular gender to most cases, even if Title VII has a narrow exception to the prohibition against employment discrimination when a distinguishing characteristic such as sex is a "bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." 42 U.S.C. § 2000e-2(e)(1). The Supreme Court has held that this exception must be applied extremely narrowly, and it is hard to believe that the sex of a lawyer would pass muster as a bona fide occupational qualification. Putnam, supra at 665 ("The Court would allow gender-based discrimination only if the employer's ability to accomplish the essential aspects of business would be compromised if the employer could not discriminate against one gender or the other.")(citing Dothard v. Rawlinson, 433 U.S. 321, 336 (1977)). It is a hard case to make that an "essential aspect" of the practice of law depends on whether a particular attorney is a man or a woman.

All of which is simply to say that whether the client of a law firm wants a man or a woman to do the job is irrelevant; the client does not get to choose for that reason. Moreover, a law firm has an independent obligation to comply with the law prohibiting sex discrimination and treat men and women equally based on their qualifications not their sex.

For a contrary point of view see When are we going to stop treating women lawyers like ne'er-do-wells and screw-ups who require special treatment to succeed?.


© Charles Williamson Day, Jr., 2016. All rights reserved.

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