It is quite hard to make any predictions with a high degree of confidence as this is still very much of a developing situation. While the deals struck by Paul, Weiss,
Skadden, and now
Willkie and Milbank might seem to indicate this, I do think there are some important reasons to consider to the effect that this will not be as impactful as some think:
- This is primarily a US matter: at least as far as the UK firms are concerned, or at least the UK firms without major operations in the US (although, in my opinion, most of the biggest operations of UK firms are not large enough to become direct targets) this should have no direct impact. Secondly, for US firms themselves, this is primarily a US matter. While their DEI policies are in many cases drafted at a firm-wide level, this used to be the case in a world where it would not be an issue to implement them across the board. Thus, while the language on their webpages and prospectuses may have changed, that does not necessarily imply a policy change across the board. I do not see why they could not in practice keep DEI policies in place in all of their non-US operations - if anything, having them in the UK puts them in a better standing with the current Government. I doubt hiring policies in foreign countries would be a relevant issue for the US Administration to target.
- The details of the deals and general crackdown of DEI are unclear: while many in the press have reacted to the pro bono donation agreements struck by the aforementioned firms as a capitulation and an abandonment to DEI, it is actually not that clear what the details of the deals are. The firms have stated that, as part of the agreements, they commited to complying with Employment law requirements, but what those requirements are vis a vis specific DEI policies is not certain. Some commentators have been arguing that compliance will only require foregoing a particular set of what the US Administration sees as 'exclusionary' policies - such as having recruitment events and other opportunities open exclusively to a given minority group. However, that would not mean any and all consideration of DEI factors and wider contextual data in recruitment is banned.
- The issue is being litigated: Thirdly, while it is the case that these three major firms have struck a deal, a number of smaller but prestigious litigation-focused firms (as of now, Jenner & Block, WilmerHale, and Perkins Coie) are are willing to go to court with the Administration over the executive orders. At the moment, it seems like the litigations are going in their favour, as the orders have been temporarily blocked. When the issue inevitably goes to trial at a higher court, should there be a similar result, it might prompt the larger firms to keep their DEI policies.
- The long-term reaction is unclear: Finally, the current conflict with the Administration is sending shockwaves through the US big law market. Associates at affected firms have expressed discontent and even reigned over the issue, stating that they will not work at an organization which does not share the same values. This could end up causing a problem for recruitment and retention of top talent. Moreover, some argue that this kind of media attention is also bad from a branding perspective, especially on the contentious side of the business, as it might make firms appear insufficiently resilient when in a dispute with the Government. This could potentially have an adverse impact for litigation clients, who could thus be prompted to move the business elsewhere. Whether these predicted long-term consequences come to pass remains to be seen; but if they do, this might once again convince the firms to rethink whether they want to change their DEI policies.
That’s why I believe it’s best to put all experiences down in the application form, even if we think they’re irrelevant, the firms may not feel the same way!!
