Holder’s Uber report comes up short
When hired by Uber following a litany of scandals, former U.S. Attorney General Eric Holder and his law firm, Covington & Burling LLP, had a golden opportunity to set a new standard for workplace diversity and inclusion efforts. They missed the mark.
Beyond providing cover against future lawsuits, it is hard to accept that the Covington team believes the 13-page “Holder Report,” which mentions “diversity” more than 50 times, can increase the representation of women and under-represented minorities. Why? Because the very initiatives it proposes already have failed — the law is the least diverse profession.
The percentage of black lawyers in major law firms is about 3 percent. Even the report’s most concrete and substantive recommendations — expanding the powers of Uber’s diversity officer and implementing a version of the NFL’s “Rooney Rule” — are mere window dressing.
The flaw in the Holder Report is that it professes to be solving the nonexistent problem of “finding qualified applicants.” The real problem is ensuring that qualified minorities aren’t passed over, harassed or discriminated against.
The report suggests Uber’s newly hired head of diversity and inclusion, Bernard Coleman, be “empowered” and encouraged to engage “Uber employees and affinity groups” and “serve as a resource for senior management and rank-and-file employees alike with respect to diversity and inclusion.” All of this will sound familiar to women and minorities who have worked in corporate law firms where diversity committees, affinity groups and D&I officers are the norm. While I do believe these initiatives have a positive impact on the quality of employment for black and female employees (though both keep leaving law firms in droves), internal diversity agendas have had virtually no effect on recruiting and hiring.
And that gets to what I believe is the most disingenuous of the report’s recommendations: Having a pool of “qualified” candidates does not necessarily translate to hires or promotions.
The NFL’s Rooney Rule was inspired by the late Pittsburgh Steelers’ owner, Dan Rooney, who headed the league’s diversity committee. It mandates that an NFL team seeking to fill a head coach or front-office position must interview a minority candidate in order to create a larger pool of qualified candidates. After 14 years, in a profession in which almost 70 percent of the players are black, the league has had only limited success: Only eight of the 32 (25 percent) head coaches are minorities.
Covington created a non-partnertrack attorney group that dramatically increased the percentage of minority attorneys in its Washington, D.C., office. But not one of the 170 staff attorneys it hired over three years was ever promoted to the partner-track position of associate. Not only were black attorneys about 30 percent of the non-partnertrack group, but they were better credentialed than others in the group. Some were associates previously and, collectively, they averaged a law school ranking much higher than that of the rest of the group.
Who did Covington promote to associate? Two white men who had not attended top law schools or been classified as attorneys within the firm.
When companies don’t release diversity statistics, which Uber has been slow to do, suing is the only way to get data and destroy false tropes such as hiring women and under-represented minorities will result in lower quality candidates. So recommendations for Uber should center on facts and figures, including:
Set diversity hiring goals and tie them to management compensation. Rather than mandating these things, the Holder Report gently nudges the ride-hailing app company to “consider” them. But hard numbers are much more effective, Joelle Emerson, co-founder and CEO of diversity consultancy Paradigm, noted in an interview with Fortune Magazine. For example, her client, Pinterest, made its 2016 hiring goals public, and while it didn’t reach the targets of filling fulltime engineering roles with 30 percent women and 8 percent under-represented ethnic backgrounds, it made marked improvement by increasing “women in technical roles from 21 to 26 percent, and more than doubled the number of people in the company from underrepresented ethnic backgrounds to 7 percent.
Make reaching diversity targets part of manager reviews and bonuses. When targets aren’t reached, companies should self-impose penalties and use that money to invest in female and under-represented minority tech startups and incubators (which are notoriously underfunded).
This isn’t an indictment of Holder, whom I hold in high regard, but rather proof that well-intentioned individuals, of whom there are many within any organization, are powerless against the company apparatus. Like football, the corporate game requires scores and penalties to be played fairly.