Academic journal article
By Baynes, Leonard M.
St. John's Law Review , Vol. 77, No. 4
"In 1989, during an interview, a white partner at Baker & MacKenzie asked a black female applicant for her high school grades and demanded to know how she would respond if called a 'black b. . .' or 'n. . . .'"1
Businesses historically have had to rely on their partnership colleagues and agents to get their work done.2 Correspondence often took weeks and sometimes longer to reach its destination.3 Only the individual working in distant markets had the knowledge and contacts to modify contractual arrangements to reflect those local conditions.4 As a consequence, the choice of agent and partner was a crucial decision.5 Because of the delay in communication, good faith, fair dealing, loyalty, and honesty were often more valuable than ability.6 Businesses sought these qualities by hiring family members or close friends.7 Nepotism reigned.8
Today, diversity and merit are ostensibly the most important factors in hiring decisions. The hiring of agents and the selection of partners based on diversity and merit leads to a culturally diverse mix of individuals working side-by-side. In this diverse environment, good faith, fair dealing, loyalty, and honesty are even more important to the success of these relationships than they were in the past. Why? Many Americans still have few contacts with people of different racial backgrounds. Many Americans still attend schools9 and live in neighborhoods that are almost completely segregated.10 Consequently, the work environment is often the place where individuals encounter diversity, often for the first time. Furthermore, although the workplace may be integrated, it is often hierarchically segregated; people of color are in support or other low level jobs, and whites hold the most senior managerial positions. Given past racial animus, housing segregation, and the continued segregation of most workplaces in the United States, it is paramount that individuals treat each other in the best of faith.
Title VII of the Civil Rights Act outlaws race discrimination in employment, and section 1981 prohibits discrimination in the making of contracts. However, these statutes are interpreted on the basis of perpetrator ideology, i.e., discrimination is aberrant, caused by a few bad actors, and the racial minority is a victim. These considerations make the prosecution of these cases very difficult because no one wants to be judged a discriminator. This Article advocates that courts use contract law concepts of good faith and fair dealing and partnership law concepts of fiduciary duty as alternative means of addressing discrimination against minority law firm associates and partners. The use of these concepts will provide another avenue of recovery for discriminated-against lawyers of color. Under these theories, the courts need not be locked into existing Title VII and section 1981 ideology requiring proof of intentional discrimination as a sine qua non of discrimination. Of course, courts will still require some proof that race is a factor in a wrongful termination, but they will have much more discretion in deciding what behavior violates notions of good faith and fair dealing. In addition, there is a great deal of psychic benefit in knowing that these corporate and business law concepts embrace nondiscrimination principles. Implementing these concepts into the workplace will promote real equality and help courts move past the Title VII and section 1981 perpetrator ideology so that real good faith and fair dealing will occur in the workplace.
In Part I, this Article explores the history faced by minority lawyers in the United States and presents an overview of some of the problems that exist today for minority associates in corporate law firms. Part II considers how minority associates in law firms can use common law concepts of good faith and fair dealing as alternative avenues for recovery for employment discrimination. Part III examines whether law firm partners are considered employees for the purpose of Title VII lawsuits. …