"Diversenfreude" And The Case Of Jones Day
November 23, 2010, 04:00 AM
A+
|
a-
Print Friendly and PDF

Once based in Cleveland, the huge law firm of Jones Day now calls itself a "Global Institution." The firm—courtroom defenders of Big Tobacco, the 19th most prestigious firm in the United States according to Vault.com,  and the eighth-highest grossing firm in the Global 100—has been hit with a racial discrimination suit filed by a black ex-secretary named Jaki Nelson.

She alleges that she was fired for being a troublemaker after complaining about discrimination, and that Jones Day tolerated an atmosphere of "racism"— and that Frederick "Rick" McNight, the managing partner in charge of Jones Day`s Los Angeles office, once used the N-word to describe a robber! [Ex-Jones Day Secretary Sues, Claims Layoffs Targeted Minorities, Troublemakers, By Debra Cassens Weiss, ABA Journal, November 9, 2010.]

The complaint Nelson filed is indeed "salacious" and includes allegations of racial slurs and "inappropriate sexual conduct."[PDF]

Biglaw gossip blog Above the Law has gathered comments from those inside the firm who demur. [Nelson v. Jones Day: Another Side to the Story, November 11, 2010]

I`m inclined to believe the firm insiders who say that Nelson, rather than being a victim of racial discrimination, was an underperformer who spent firm hours monitoring her Ebay business. Law firms are famously harsh environments, but partners do not run around yelling the "n-word".

My guess would be that Nelson, who was let go along with other staffers in a group layoff, is taking advantage of her racial status to squeeze more money out of the firm—standard operating procedure in American corporate life today.

The Above the Law commenters say Jones Day is actually terrified of dealing squarely with minority employees for fear of a discrimination suit. So these employees get away with bloody murder. That`s not hard to believe either.

Elsewhere, there`s a similar effect with non-white lawyers. [`Confrontational` Lawyer Loses DLA Piper Bias Suit,  By Debra Cassens Weiss, ABA Journal, December 7, 2007]

In my time as a lawyer, I`ve seen the same patterns. I`ve worked in government litigation offices where black or Hispanic "support staffers", as we called them, came to work intoxicated, refused to work and ran around like screaming children during work hours. But they couldn`t be fired, either for union or racial reasons, or both. One black man was only fired after he was caught masturbating in a closet. (It probably helped that the woman who caught him was also black, and not shy about her displeasure).

The private sector`s diversity plagues are perhaps less acute, but still felt. At the law firm where I toiled for several years, there was a single black associate and a single black partner. The black associate was remarkably personable, but his billable hours were woeful (our system allowed you to check up on anyone else`s hours—and I once checked everyone in a fit of competitive curiosity). The black partner was also a social ace, but I recall one white associate who`d been teamed up with him for a trial being baffled by the partner`s bizarre courtroom approach. The case—a rare plaintiff`s side matter for our firm, which almost always took the defense side—was a dog that lost the firm a lot of money).

But so what? As the sole black associate and sole black partner, both these men were bulletproof.

What was the firm going to do—fire its only black associate? Not a chance.

It amazes me how lawyers, so quick to pounce on the slightest mistake of an adversary and so ruthless in their analysis of a given situation, can go completely blind when faced with underperforming or incompetent non-whites. But you can be sure that no legal employer will ever issue a statement like this:

"Come to think of it, folks, "diversity" is a big joke. We should be going by the skills and performance of the individual, not trying to assemble a palette of colorful faces for a brochure shoot. If someone`s not cutting it, they should be fired without fear of a race discrimination suit."

No, they`re going to continue to mouth their "commitment to diversity".

Jones Day, like every other institution in America, extols the benefits of "diversity". Someone somewhere can probably tell you the princely sum the firm has spent on "diversity".

In the cringe-inducting doublespeak of the times, Jones Day endorses the notion of diversity as an "investment".

So, in the spirit of Above The Law`s "Skaddenfreude"—a combination of the German "schadenfreude" and the name of another prestigious law firm, Skadden Arps, meaning taking pleasure in the misfortune of others who work at large law firms—I hereby coin "Diversenfreude".

"Di∙vers∙en∙freude": (Noun) taking pleasure in the difficulties suffered by prestigious American institutions caused by the very multiracialism they tell the rest of us is so wonderful. Example: "When the EEOC itself was sued for employment discrimination, I couldn`t help but feel a little diversenfreude."

Because the gritty truth is that "diversity", rather than being an "investment" for Jones Day, is making it really miserable right about now.

The firm—along with publicly-named partners, associates and staff—has its name dragged through the mud, must shell out cash for its own legal defense, and will spend precious firm hours dealing with both the lawsuit and the surrounding publicity issues.

They may well lose clients like Wal-Mart, who insist on "diversity" in their law firms. Pushed by Clients, Law Firms Step Up Diversity Efforts, By Karen Donovan, New York Times, July 21, 2006

They may have to sit for hours of depositions conducted by Johnny Darnell Griggs, Nelson`s lawyer.

To say nothing of the costs incurred over the years by hard-to-discipline, underperforming employees like Jaki Nelson—who lounge about with impunity, knowing that fear of a lawsuit insulates them from being fired.

Actual studies of diversity in the business world tell us that it either makes no difference to the bottom line, or actually hurts it.(See The Effects Of Diversity On Business Performance: Report Of The Diversity Research Network, PDF, whose authors mildly suggest that "more nuanced view of the "business case" for diversity may be appropriate," or When quotas replace merit, everybody suffers, by Peter Brimelow and Leslie Spencer Forbes, 1993 )

This is where the reality smacks up against the rhetoric. Racial diversity isn`t an "opportunity", it`s an inefficient mess, a financial sinkhole, and a ridiculous distraction.

Thomas Jefferson once quipped that "It is error alone which needs the support of government. Truth can stand by itself."

Similarly, it is "diversity" alone that requires a propaganda poster on every wall, a full-time coordinator on every floor, and endless litigation.

If the cold and calculating world of "Biglaw" isn`t getting it, who will?

Anonymous Attorney really wants to be anonymous, but email will be forwarded to him. Put "Anonymous Attorney" in the subject line.