Title VII of the Civil Rights Act, and related or inspired laws at the state and local level such as New York State or City Human Rights Law, address adverse action and discrimination in hiring, terms of employment, pay, promotion, opportunities and transfers, and furlough or firings.  Over the past three decades, the U.S. Supreme Court opinion has clarified how a law like Title VII, or a constitutional right like Fourteenth Amendment “Equal Protection of the Laws,” restrict reverse discrimination, or the creation of quotas or plus factors based on minority race or ethnicity, female sex or gender, or minority religion, national origin, or other identities. 

Recent settlements between the U.S. Department of Justice and major law firms have involved somewhat unique commitments to “merit-based” hiring.  The U.S. government has apparently been investigating the issue of reverse discrimination at such law firms, and extracting commitments to equal opportunity in employment and equal protection from discrimination, even when it benefits men or members of majority racial, ethnic, origins, or religious groups.

An Introduction to Merit-Based Hiring and Internships

Merit-based hiring is a legal guarantee for many jobs in the United States.  The first principle of federal job placement is that the merit of the applicant should drive recruitment, selection and advancement within federal agencies and departments. The Merit Systems Protection Board (MSPB) is a body that federal employees can file complaints about illegal hiring or promotion practices or retaliation with, and it tries to promote merit to protect the rights of federal workers.

In New York State, merit is an aspect of the Civil Service Law, which helps guarantee that hiring and promotions in New York jobs in the public service are “based on merit and fitness.”  Similarly, many cities have merit-based hiring commitments in their city charters or other governing documents.  New York City has a civil service exam, the Education and Experience Exam, and an online system that uses exams to hire based on merit for more than 70 agencies that serve the City and its residents.  Similarly, internships are often based on qualifications, and advertised with guarantees of “a work environment that is free from discrimination … based upon any legally protected status or protected characteristic, including but not limited to an individual’s sex, race, color, ethnicity, national origin, age, religion, disability, sexual orientation, veteran status, gender identity, or pregnancy.”

The Question of Merit-Based Internships in Law Firms

Several U.S. law firms, including some of the top 20 in the industry, have recently committed under pressure from the U.S. government to engage in “merit-based hiring, promotion, and retention.”  The question may be, what were they engaging in previously.

It appears that the new administration alleged that law firms had “engage[d] in illegal DEI discrimination and preferences.”  This refers to Diversity, Equity, and Inclusion (DEI) plans or practices in hiring and promotion, a topic of some controversy in the business and legal communities. 

Title VII of the Civil Rights Act prohibits significant discriminatory impacts in employment-related policies or practices.  It also prohibits adverse employment actions under circumstances in which members of a different class of persons that the qualified victim’s protected class were treated more favorably than the victim; the protected class does not have to be sex-related or race-related but could be something else as well, from a limited list of protected classes of people.  Similarly, the Equal Pay Act restricts an employer from discriminating between employees on the basis of sex by paying lesser wages to members of one sex than to employees of the opposite sex for equal work in positions involving equal skill, effort, and responsibility, and similar working conditions, except the lesser payment is required by a merit system, a seniority system, a system based on productivity, or another factor than sex.

The U.S. Constitution also has a provision, in the Fourteenth Amendment, for equal protection of the laws, which in practice can be similar to Title VII on matters such as adverse actions related to race, sex, ethnicity, and so on.  State laws like the New York State Human Rights Law has a parallel to Title VII too, and may even go farther.  The New York City Human Rights Law may contain even those protections that Title VII or the NYSHRL may not have, for some groups or situations.   

In law firms, the question in recent years has been whether DEI shaped summer associate recruiting, or internship hiring.  The U.S. Equal Employment Opportunity Commission has requested information from a number of law firms about the sex, race, and identity of applicants for DEI-related summer internships or programs.  Its acting chair stated that the government wants to “root out discrimination” in law firms.  An executive order stated that some law firms “reserve certain positions, such as summer associate spots, for individuals of preferred races; promote individuals on a discriminatory basis; permit client access on a discriminatory basis; or provide access to events, trainings, or travel on a discriminatory basis.”

Contact a New York Consumer and Employment Lawyer Today

These are just a few examples of developments in the law relating to how hiring, promotion, and retention in the private sector.  For more specific information geared to your situation, contact an attorney at Leeds Brown Law to see if you have a legal claim or claims.

Our efforts have resulted in millions of dollars in monetary and non-monetary compensation for consumers and employees throughout New York City and Long Island.  We can help answer your questions and evaluate your potential claim.

A free consultation can help you understand your rights and take action to protect them, including by contacting human resources or the government.