Insights

Washington – October 20, 2023: The Leadership Council on Legal Diversity awarded Crowell & Moring its Top Performer and Compass awards, noting the firm’s commitment to building a more diverse, equitable, and inclusive organization and legal profession. This marks the seventh consecutive year that the firm has been honored with these distinctions.

On March 5, 2024, a federal judge in Texas struck down a federally-sponsored racial preference extended to minority groups seeking to access capital and government contracts. Nuziard v. Minority Business Development Agency (“Nuziard”). Plaintiffs, who are non-minority business owners, challenged a preference provided by the Minority Business Development Agency (“MBDA”), a bureau of the Department of Commerce, to “socially or economically disadvantaged individual[s],” defined to include African Americans, Hasidic Jews, Hispanic Americans, Native Americans and Pacific Islanders. The court struck down the MBDA’s presumption that such racial minorities are socially disadvantaged, finding the preference violated the Equal Protection Clause.   Nuziard, like the recent decision by a federal court in Tennessee in Ultima Services Corp. v. U.S. Department of Agriculture (“Ultima”), follows the Supreme Court’s decision in Students for Fair Admissions, Inc. v. Pres & Fellows of Harvard College, 600 U.S. 181 (2023) (“SFFA”) and, like Ultima, advances the mission of activist organizations across the country seeking to invalidate race-based presumptions in federally funded and sponsored entitlement programs.  

On June 29, 2023, the Supreme Court held that it is unconstitutional (under the Constitution’s Equal Protection Clause, as to public institutions) and a violation of Title VI of the Civil Rights Act of 1964 (as applicable to private institutions accepting federal financial assistance) for colleges and universities to consider race as a factor in the admissions process. See Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., No. 20-1199, 2023 WL 4239254 (U.S. June 29, 2023) (“Harvard”), a summary of which can be found here. This decision upended decades of precedent and has caused employers in the private sector to ask how the decision will impact diversity, equity, and inclusion (“DE&I”) initiatives and employment decisions. This article addresses the impact of Harvard, eight months later.

On October 27, the National Labor Relations Board (“NLRB”) issued a long-awaited Final Rule (“Final Rule”) that will dramatically alter the test for joint-employer status. As proposed,  the Final Rule rescinds the NLRB’s 2020 Final Rule, with the NLRB claiming that the new rule “more faithfully grounds the joint-employer standard in established common-law agency principles.”   In effect, the Final Rule will make it easier for employees of franchises, staffing agencies, and potentially a broad swath of contractors to show that two entities are joint employers. If an entity is found to be a joint employer with the direct employer of unionized employees, “under common-law agency principles,” the entity can be liable for the unfair labor practices of the co-employer and can be required to negotiate with the union representing the workers under the National Labor Relations Act (“NLRA”).  The NLRB’s new rule will take effect on December 26, 2023 and is not retroactive.

The American Lawyer*quotes partner Ellen Dwyer, chair of the Leadership Council on Legal Diversity (LCLD) and chair of the firm’s Executive Committee, regarding the need for LCLD’s membership of general counsel and managing partners to make personal commitments as leaders to make progress in improving diversity in their organizations.  *subscription required

Diversity and inclusion are essential to the growth and prosperity of any organization. Diversity of perspectives, experiences, cultures, genders, and age breeds innovation, while inclusion ensures that everyone has the opportunity to contribute to that success and that the diversity play is not just a tick box on a corporate score card. 

Over the past five years, as the Leadership Council on Legal Diversity (LCLD) has grown in size and scope, the pace of change in all aspects of legal services has accelerated, driven by the forces of technology and globalization. "We're living through one of the greatest disruptions in history," says Professor David Wilkins of Harvard Law School. "The legal profession is never going to be the same." 

The Law Firm Management Forum will take an in-depth look at the law firm model and discuss trends and predictions for the future. From recruitment and staffing to compensation and billing rates, now is the time to take a fresh look at how you run your law firm. Strategic planning will be necessary at all levels of the firm, not just in the management committee.

Please join us for a webinar that will discuss the key business and legal issues that companies will have to navigate as they plan to re-open their businesses in the months ahead. We will discuss lessons learned from the re-opening efforts currently underway in Asia, potential legal and practical challenges associated with wide scale testing, contact tracing, PPE distribution, and other measures intended to thwart a second wave of the virus. We will also highlight varied approaches across industries and preview the anticipated evolution of state laws and ordinances following the federal government’s issuance of “Opening Up America Again” Guidelines.  

As COVID-19 infections continue to mount, reports of employees becoming increasingly concerned about having to report to worksites across the country in service of essential businesses are escalating. Anxious employees are refusing to come to work, and in some cases, have already lodged formal complaints in court and with relevant agencies, notwithstanding the myriad efforts undertaken by their employers both to adhere to CDC guidance and implement wide ranging safety measures. 

Time’s Up – the non-profit seeking to eradicate sexual harassment and foster fairness and inclusivity in workplaces across the nation – took aim at the health care industry on March 1, 2019. With women comprising 65 percent of health care workers, and nearly 50 percent of female medical students reporting being sexually harassed during medical school, the health care industry is rife with potential claimants and risk.