Vol. 125 No. 3
Book Review
BIG LAW’S RACE PROBLEM

BIG LAW’S RACE PROBLEM

The Black Ceiling: How Race Still Matters in the Elite Workplace

By Kevin Woodson. Chicago: The University of Chicago Press, 2023. Pp. 216. $26.00.

Angela Onwuachi-Willig* & Anthony V. Alfieri**

Ever since the 1970s when BigLaw firms began to hire Black lawyers into their associate ranks, these firms have wrestled with problems in both recruiting and retaining Black associates. During the ensuing decades, BigLaw firms have minimally increased the low numbers of Black attorneys who have become partners, particularly equity partners, within their organizations. Numerous scholars have explored how racial bias and discrimination, both within BigLaw firms and greater society, have contributed to such failures in the recruitment, retention, and promotion of Black lawyers. In his new book The Black Ceiling: How Race Still Matters in the Elite Workplace, Professor Kevin Woodson, a Black law professor and sociologist who once worked as an associate at a large, elite law firm, offers his own theory about how “racial discomfort,” and specifically “social alienation” and “stigma anxiety” related to race, have functioned together to create and maintain racial disparities in BigLaw attrition and partnership. This Book Review examines Woodson’s insights against the backdrop of recent high-profile employment discrimination litigation embroiling BigLaw firms across the country, focusing on one recent case, Cardwell v. Davis Polk & Wardwell LLP, in which the plaintiff, a Black former associate, alleged he had been fired in retaliation for raising concerns about racial discrimination at his law firm. The Book Review extends Woodson’s research by identifying and assessing innovative firm- and industry-wide policies that can mitigate the impact of racial discomfort on Black associates’ prospects for thriving in and attaining partnership at BigLaw firms.

The full text of this Book Review can be found by clicking the PDF link to the left.

* Dean and Ryan Roth Gallo Professor of Law, Boston University School of Law. Thank you very much to Provost Gloria Waters for her research support. I also extend my sincere thanks to Mario Barnes, Mandie LeBeau, Jacob Willig-Onwuachi and Kevin Woodson for their helpful insights and comments. I also thank BU Law librarian Stefanie Weigmann for her excellent research assistance. Enormous thanks go to Shaunak M. Puri for his excellent edits and praiseworthy patience. Professor Alfieri and I are thankful for his commitment to making our work its best. We also express our sincere gratitude to the entire team at the Columbia Law Review for their excellent work on our piece. Finally, I give special thanks to my husband, Jacob, and our children Elijah, Bethany, and Solomon for their constant love and support. ORCID: https://orcid.org/0000-0002-5091-7365.

** Michael Klein Distinguished Scholar Chair, Professor of Law, and Director, Center for Ethics and Public Service, University of Miami School of Law. For their comments and support, I am grateful to Patricia Sanchez Abril, Anaise Boucher-Browning, Charlton Copeland, Ellen Grant, Adrian Barker Grant-Alfieri, Amelia Hope Grant-Alfieri, Peter Margulies, Kesha Merritt, JoNel Newman, Alexander Rundlet, Robin Schard, Hilary Sommerlad, Kevin Woodson, and the Legal Professions Research Group at the University of Leeds School of Law. I also thank Minah Malik, Angela Pope, and Nia Smith for their research assistance.

“Elite firms are not raceless organizations.”

— Professor Kevin Woodson. 1 Kevin Woodson, The Black Ceiling: How Race Still Matters in the Elite Workplace 17 (2023) [hereinafter Woodson, The Black Ceiling].

Introduction

In 2001, The American Lawyer published a devastating critique of large law firms 2 This Book Review uses the terms “large law firms” and “BigLaw firms” interchangeably. “Large law firms” refers to law firms with 100-plus attorneys. “The term ‘Big Law’ refers to the nation’s very large firms, as defined by the number of lawyers, size of revenue and number of offices.” Ashley Merryman, What Is ‘Big Law?’, U.S. News & World Rep. (Sept. 7, 2023), https://law.usnews.com/law-firms/advice/articles/what-is-big-law (on file with the Columbia Law Review). in an article entitled Losing the Race. 3 Alan Jenkins, Losing the Race, Law.com (Oct. 3, 2001), https://www.law.com/almID/900005523745/ (on file with the Columbia Law Review). The article chronicled the longstanding failures of large law firms in retaining Black 4 Throughout this Book Review, the authors capitalize the word “Black” when they use the term in reference to a racialized group. As Professor Kimberlé Crenshaw has explained, using the uppercase “B” reflects the “view that Black[] [people], like Asians, Latinos, and other ‘minorities,’ constitute a specific cultural group and, as such, require denotation as a proper noun.” Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1332 n.2 (1988); see also W. E. Burghardt Du Bois, That Capital “N”, 11 The Crisis 184, 184 (1916) (contending that the “N” in the word “Negro” was always capitalized until defenders of slavery began to use the lowercase “n” as a marker of Black people’s status as property and as an insult to Black people); cf. Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: An Agenda for Theory, 7 Signs 515, 516 (1982) (asserting that “Black” cannot be reduced to “merely a color of skin pigmentation, but as a heritage, an experience, a cultural and personal identity, the meaning of which becomes specifically stigmatic and/or glorious and/or ordinary under specific social conditions”). Additionally, the authors find that “[i]t is more convenient to invoke the terminological differentiation between [B]lack and white than say, between African-American and Northern European-American, which would be necessary to maintain semantic symmetry between the two typologies.” Alex M. Johnson, Jr., Defending the Use of Quotas in Affirmative Action: Attacking Racism in the Nineties, 1992 U. Ill. L. Rev. 1043, 1044 n.4.

Here, as elsewhere, the authors use the words “Black people,” rather than the words “African American people,” to refer to the entire group of people who identify as being Black in the United States because it is more inclusive. In this Book Review, “African American” specifically refers to direct descendants of enslaved Africans who were forcibly brought to the United States during the slave trade, whereas “Black people” refers to a broader group, including many people and communities without a direct connection to chattel slavery in the United States. See Cydney Adams, Not All Black People Are African American. Here’s the Difference., CBS News (June 18, 2020), https://www.cbsnews.com/news/not-all-black-people-are-african-american-what-is-the-difference/ [https://perma.cc/ENS9-MV6A] (describing “the adoption of the term African American as a ‘very deliberate move on the part of [B]lack communities to signify our American-ness, but also signify this African heritage’” (quoting Professor Celeste Watkins-Hayes)). These distinctions are important because, at times, there are intersectional, intraracial differences in how these different groups experience racial subordination and discrimination. See Angela Onwuachi-Willig, The Admission of Legacy Blacks, 60 Vand. L. Rev. 1141, 1141–60, 1165–1204 (2007) (detailing some of those differences, with a specific focus on access and admission to elite universities and colleges). That said, the authors consider “Black” to be “a better default” term to use when generally discussing racism or anti-Black racism because use of the term “Black people” recognizes that not every Black person who lives in the United States is a citizen of the United States by birth or naturalization and thus cannot access the benefits of citizenship. See Adams, supra. Additionally, not every Black person in the United States identifies as a descendant from Africa. See id. (“African American technically isn’t even what I am . . . . I’m a Jamaican-born [B]lack person but I have taken on this label of African American because of where I live.” (internal quotation marks omitted) (quoting Darien LaBeach)).

Several parts of this Book Review discuss the historical presence of Black people prior to the first influx of Black immigrants in the 1960s and 1970s, so the authors will sometimes use the term “African American” when the broader term “Black” is not needed. See Anthony V. Alfieri & Angela Onwuachi-Willig, Next-Generation Civil Rights Lawyers: Race and Representation in the Age of Identity Performance, 122 Yale L.J. 1484, 1488 n.5 (2013) (book review) (“The year 1965 thus marked the beginning of a much more diverse, far less European immigrant stream into this country.” (internal quotation marks omitted) (quoting Kevin R. Johnson, The End of “Civil Rights” as We Know It?: Immigration and Civil Rights in the New Millennium, 49 UCLA L. Rev. 1481, 1484 (2002))). For an argument framing the experience of Black enslaved people—while clearly marked by the forced, vicious, and deadly trafficking from their native lands during the slave trade—as a type of “immigrant[] [experience] in the sense that they arrived from the foreign shores of Africa or the Caribbean, often without knowledge of the language and customs,” see Lolita K. Buckner Inniss, Tricky Magic: Blacks as Immigrants and the Paradox of Foreignness, 49 DePaul L. Rev. 85, 90–94 (1999). associates and successfully mentoring them into and through the partnership ranks. 5 See Jenkins, supra note 3 (showing that the percentage of Black associates and partners is lower than the percentage of Black law students and exploring potential causes for this discrepancy). The article’s author was Alan Jenkins, a Harvard-educated Black attorney who served as a law clerk for both U.S. District Court Judge Robert L. Carter and U.S. Supreme Court Justice Harry Blackmun. 6 Alan Jenkins, Harv. L. Sch., https://hls.harvard.edu/faculty/alan-jenkins [https://perma.cc/PTF2-R3B4] (last visited Oct. 26, 2024). Jenkins filtered his critique through an exploration of a cohort of Black associates at one of the nation’s most prestigious law firms, Cleary Gottlieb Steen & Hamilton, from 1989 to 1996. 7 Jenkins, supra note 3. Jenkins focused on Cleary precisely because the firm had been a leader in taking the first important step toward addressing the “race problem” in large law firms: hiring a critical mass—meaning more than mere token numbers 8 A critical mass is established when an underrepresented group is represented in high enough numbers that its members are less likely to feel isolated within an environment, are more likely to feel comfortable participating in the institution’s culture, and do not feel like the sole representative of their race. See Grutter v. Bollinger, 539 U.S. 306, 318–19 (2003) (discussing critical mass in the context of higher education); see also Vinay Harpalani, Diversity Within Racial Groups and the Constitutionality of Race-Conscious Admissions, 15 U. Pa. J. Const. L. 463, 468 (2012) (noting that “a ‘critical mass’ of minority students refers not only to numerical representation of racial groups, but also to the diversity of viewpoints and experiences within each group, which contribute to the educational benefits of diversity articulated in Grutter”). The term “token numbers” refers to the numerical representation of a group that is not only miniscule in size and scale but also merely symbolic. One author proclaimed that “tokenism” is “the practice of doing something (such as hiring a person who belongs to a minority group) only to prevent criticism and give the appearance that people are being treated fairly.” See Kara Sherrer, What Is Tokenism, and Why Does It Matter in the Workplace?, Vand. Univ. Owen Graduate Sch. of Mgmt. (Feb. 26, 2018), https://business.vanderbilt.edu/news/2018/02/26/tokenism-in-the-workplace [https://perma.cc/FPQ2-ZGVB] (internal quotation marks omitted) (quoting Tokenism, The Brittanica Dictionary, https://www.britannica.com/dictionary/tokenism [https://perma.cc/3Z5E-2LTR] (last visited Jan. 28, 2025)) (misattributed quotation); see also Margaret M. Russell, Beyond “Sellouts” and “Race Cards”: Black Attorneys and the Straitjacket of Legal Practice, 95 Mich. L. Rev. 766, 768–72 (1997) (discussing the costs of being a “token” for Black attorneys). —of Black associates in its New York City office. 9 See Jenkins, supra note 3 (describing Cleary’s aggressive recruitment strategy and growth, and quoting one of its Black associates during the 1989–1996 period as stating, “There were enough [B]lack associates at Cleary that . . . we didn’t even get together that much” (second alteration in original) (internal quotation marks omitted) (quoting Professor Denise Morgan)). Cleary’s New York office went from employing only one Black associate in 1989, to twenty-three Black associates in 1992, to its then-peak of thirty Black associates in 1996. 10 Id. The Vault Law Firm Diversity Survey reported that there were twenty-seven Black associates (eight men, nineteen women, and zero nonbinary individuals) at Cleary’s U.S. offices in 2023. 2023 Vault Law Diversity Survey, Cleary Gottlieb Stein & Hamilton 4, https://media2.vault.com/14349285/cleary-gottlieb-with-ad.pdf [https://perma.cc/8S6L-LS5X] (last visited Oct. 26, 2024). (Over the same time period, the firm also more than doubled its number of Latinx 11 This Book Review follows the more widespread practice today of using the term “Latinx” to refer to individuals with ancestral or direct heritage in Latin America. For examples of recent scholarship that also use the term Latinx, see, e.g., Kevin R. Johnson, Systemic Racism in the U.S. Immigration Laws, 97 Ind. L.J. 1455, 1470–72 (2022); Ediberto Román & Ernesto Sagás, Rhetoric and the Creation of Hysteria, 107 Cornell L. Rev. Online 188, 216–17 (2022), https://live-cornell-law-review.pantheonsite.io/wp-content/uploads/2022/12/Roman-Sagas-final.pdf [https://perma.cc/BH8K-ZYWR]; Jasmine B. Gonzales Rose, Color-Blind but Not Color-Deaf: Accent Discrimination in Jury Selection, 44 N.Y.U. Rev. L. & Soc. Change 309, 312 n.19 (2020). The authors use the term “Latinx” instead of “Hispanic” because the term “Hispanic” “refer[s] to people from or with a heritage rooted in Spanish-speaking Latin American countries or Spain.” Latine vs. Latinx: How and Why They’re Used, Dictionary.com (Sept. 26, 2022), https://www.dictionary.com/e/latine-vs-latinx [https://perma.cc/5B59-NWW4]; see also Bos. Univ. Ctr. for Antiracist Rsch., Comment Letter on Notice of Initial Proposals for Updating OMB’s Race and Ethnicity Statistical Standards 4 n.15 (Apr. 25, 2023), https://www.bu.edu/antiracism-center/files/2023/04/2023.4.25-BU-CAR-Comment-on-Proposals-for-Updating-Race-and-Ethnicity-Statistical-Standards.pdf (on file with the Columbia Law Review) (“‘Hispanic’ has a colonial history. The term de-emphasizes Latino/a/e connection to the Americas and emphasizes Spanish heritage over Indigenous and African heritage. ‘Hispanic’ also excludes the population descended from Latin America who do not share Spanish as a heritage language, but who may have similar racialized experiences . . . .”). The authors also prefer to use the term “Latinx” because it is more “inclusive of [people from] countries where Spanish is not the most widely spoken language, such as Brazil.” Latine vs. Latinx: How and Why They’re Used, supra. Furthermore, the authors use the term “Latinx” instead of “Latino” and “Latina,” which are the masculine and feminine forms of the word, to avoid gendered language when our intention is to be gender-inclusive. See id. Although the term “Latinx” has no Spanish pronunciation and another term growing in favor, “Latine,” does, the authors use the term “Latinx” because it is currently the more commonly used term in legal scholarship; thus, it is more readily recognizable as an intentional use of a gender-neutral term. The authors use the term “Latinx” “here with the awareness that [it] may be imperfect.” See Bos. Univ. Ctr. for Antiracist Rsch., supra, at 4 n.15. attorneys from six to fourteen and more than tripled its number of Asian attorneys from seven to twenty-four.) 12 Jenkins, supra note 3. In 1996, of its 513 attorneys, Cleary had 0 Black partners, 30 Black associates, 2 Latinx partners, 12 Latinx associates, 3 Asian partners, and 21 Asian associates. There were no Native American partners or associates. See Ann Davis, Big Jump in Minority Associates, But; Significant Attrition in Their Later Years Has Left Partnership Ranks Almost as White as Five Years Ago, Nat’l L.J. (Apr. 29, 1996) (on file with the Columbia Law Review). But by 2001, the firm’s number of Black associates had been cut in half to fifteen, with none of those fifteen Black associates having come from the 1989-to-1996 Losing the Race cohort. 13 Jenkins, supra note 3.

Not surprisingly, while highlighting Cleary’s status as “a leader in diversity” among large law firms, a 2000 issue of the Vault Guide to the Top 50 Law Firms registered Black associate attrition and the small number of Black partners as two key problems for the firm. 14 See Steve Gordon, Hussam Hamadeh, Mark Oldman, Douglas Cantor, Catherine Cugell, Michael Erman, Marcy Lerner & Chris Prior, Vault.com Guide to the Top 50 Law Firms 153 (3d ed. 2000). This excerpt read: “[S]ome associates believe that ethnic minorities, particularly African-Americans, leave in disproportionately high numbers. ‘I think the firm works very hard on this. I can see, though, why African-American associates find it dismaying that there are no African-American partners.’” 15 Id. (quoting one contact at Cleary). Although the quote notes that there were no Black partners at Cleary, this assertion was incorrect. By 2000, there was at least one Black partner at Cleary: Carmen Amalia Corrales. See infra notes 80–84 and accompanying text.

But, nearly twenty years later in 2018, comments on Cleary’s diversity efforts in that year’s Vault Guide showed improvement. For instance, one comment read:

[Cleary] does a fantastic job at recruiting women and minorities, however at the top level the needle has moved very little, with few women or minorities being promoted. I do believe that this is a genuine issue of concern to many in the partnership, but there is no clear sense of how to fix this issue. 16 Vault Guide to the Top 100 Law Firms: More Than 17,000 Associates Rank the Top Firms 166 (Matthew J. Moody ed., 2018) (internal quotation marks omitted).

By 2024, Cleary remained steady in its commitment to and upward trajectory in advancing diversity and inclusion for attorneys of color on its teams. This time, comments in the Vault Guide stressed the strides that the firm had taken to advance diversity efforts and to communicate the importance of diversity to all of its constituents, both internally and externally. For example, one respondent stated:

The firm offers billable credit for all participation in affinity groups and other firm citizenship committees and events. Participation is encouraged. The firm is open about diversity being a clear goal and is transparent about the processes that they are taking to achieve those goals, as well as how they are measured. While the law as a whole is not particularly diverse, it is clear that the firm cares a great deal about enhancing diversity and doing so intentionally and effectively. 17 Cleary Gottlieb Steen & Hamilton LLP Associate Reviews: Inclusion Efforts, Vault, https://vault.com/company-profiles/law/cleary-gottlieb-steen-hamilton-llp [https://
perma.cc/SB3U-KT7Y] (last visited Oct. 27, 2024) (internal quotation marks omitted).

Indeed, one woman of color associate remarked the following in the Vault Guide: “I am a minority woman of color and require particular religious accommodation. Cleary is phenomenal at creating a space where I can work and thrive.” 18 Id. (internal quotation marks omitted). Critically, Cleary was named a top twenty firm in The American Lawyer’s 2024 Diversity Scorecard, with special recognition for being third in LGBTQ+ representation and eighteenth in minority representation. 19 Cleary Named a Top 20 Firm in 2024 Am Law Diversity Scorecard, Cleary Gottlieb (June 25, 2024), https://www.clearygottlieb.com/news-and-insights/news-listing/cleary-named-a-top-20-firm-in-2024-am-law-diversity-scorecard [https://perma.cc/D7HW-HMN6]; see also The 2024 Diversity Scorecard: Minority Representation, Am. Law. (June 25, 2024), https://www.law.com/americanlawyer/2024/06/25/the-2024-diversity-scorecard/?kw=The%202024%20Diversity%20Scorecard%3A%20Minority%20Representation (on file with the Columbia Law Review).

Still, even Cleary concedes that it must do more work to achieve equity and inclusion for underrepresented attorneys, including attorneys of color, in its practices. 20 See Comm. on Diversity Issues, Cleary Gottlieb,  2011 Annual Report 27, https://www.clearygottlieb.com/-/media/organize-archive/cgsh/files/publication-pdfs/cleary-gottlieb-committee-on-diversity-issues-annual-report.pdf [https://perma.cc/2UNH-EATD] (last visited Nov. 2, 2024) (describing the importance of diversity, offering the firm’s mission statement on diversity, detailing its goals “to develop and implement new policies that further promote a diverse workplace,” and declaring such work must be done on “a consistent basis throughout each year”). The firm’s storied battle with Black associate attrition and low Black partnership numbers is not unique among large law firms. A decades-long trail of newspaper headlines reveals the persistent challenges that Black associates and partners encounter in large law firms: “Big Jump in Minority Associates, But; Significant Attrition in Their Later Years Has Left Partnership Ranks Almost as White as Five Years Ago” (1996); 21 Davis, supra note 12 (detailing how the both the numbers and percentages of people of color in partnership ranks at law firms remain low despite growth in the number of people of color at the associate ranks). “Black Lawyers: Lonely at the Bottom” (1999); 22 Michael D. Goldhaber, Black Lawyers: Lonely at the Bottom, Nat’l L.J. (Apr. 12, 1999) (on file with the Columbia Law Review) (describing the high attrition rate of Black associates at law firms and the challenges that they face due to partners’ disparate treatment of them and the small number of Black associates). “Lawyers Debate Why Blacks Lag at Major Firms” (2006); 23 Adam Liptak, Lawyers Debate Why Blacks Lag at Major Firms, N.Y. Times (Nov. 29, 2006), http://www.nytimes.com/2006/11/29/us/29diverse.html (on file with the Columbia Law Review) (noting that Black associates “remain far less likely to stay at the firms or to make partner than their white counterparts” and detailing a debate over Professor Richard Sander’s then-new research, which attributed the disproportionate attrition rate of Black associates to the fact that their law school grades were, on average, lower than those of white associates). “Many Black Lawyers Navigate a Rocky, Lonely Road to Partner” (2015); 24 Elizabeth Olson, Many Black Lawyers Navigate a Rocky, Lonely Road to Partner, N.Y. Times: Dealbook (Aug. 17, 2015), https://www.nytimes.com/2015/08/18/business/
dealbook/many-black-lawyers-navigate-a-rocky-lonely-road-to-partner.html (on file with the Columbia Law Review) (detailing how the lack of prior exposure to the corporate world, the lack of mentorship from white partners, and the conscious and unconscious racial bias that Black associates face in law firms, plus other factors, contribute to the low numbers of Black partners in large law firms). “Why They Left: Black Lawyers on Why Big Law Can’t Keep Them Around”(2020); 25 Dylan Jackson, Why They Left: Black Lawyers on Why Big Law Can’t Keep Them Around, Am. Law. (Aug. 24, 2020), https://www.law.com/americanlawyer/2020/08/
24/why-they-left-black-lawyers-on-why-big-law-cant-keep-them-around/ (on file with the Columbia Law Review) (highlighting lack of mentorship, cultural isolation, and difficulties in developing and maintaining a book of business as major reasons why Black associates leave their private law firms in droves). and “Why the Blackout in Philly’s Big Law” (2024). 26 Christina Kristofic, Tribune Special Report: Why the Blackout in Philly’s
Big Law, Phila. Trib. (June 17, 2024), https://www.phillytrib.com/news/local_news
/tribune-special-report-why-the-blackout-in-phillys-big-law/article_c1f2f72f-38e1-5fd6-af4a-0688842656d6.html [https://perma.cc/6V85-TRBW] (detailing numerous reasons, including disparate treatment by white partners in assignments and mentorship, loneliness and isolation, lack of access to information, and the imposition of negative racial stereotypes on them, as accountable for the near-absence of Black partners (and associates) in Philadelphia’s law firms).

Ultimately, two persistent questions continue to plague large law firms when it comes to racial representation and the partnership successes of attorneys of color. First, what exactly is causing the disproportionate retention rates as well as the low rates of partnership attainment among attorneys of color, specifically Black attorneys, at large law firms? Second, what can be done to stem these critical problems?

In his important new book, The Black Ceiling: How Race Still Matters in the Elite Workplace, 27 Woodson, The Black Ceiling, supra note 1. For earlier writings laying the groundwork for Woodson’s study, see generally Kevin Woodson, Derivative Racial Discrimination, 12 Stan. J. C.R. & C.L. 335 (2016) (introducing the concept of “derivative racial discrimination,” explaining its adverse consequences on Black employees at predominantly white firms, and detailing how it might be addressed by Title VII of the 1964 Civil Rights Act); Kevin Woodson, Human Capital Discrimination, Law Firm Inequality, and the Limits of Title VII, 38 Cardozo L. Rev. 183 (2016) (discussing how large, predominantly white law firms operate as sites of “human capital discrimination, [a] process through which unequal access to quality work assignments limits the careers of [B]lack associates and reinforces racial inequality”); Kevin Woodson, Race and Rapport: Homophily and Racial Disadvantage in Large Law Firms, 83 Fordham L. Rev. 2557 (2015) (explaining how cultural homophily, or “the tendency of people to develop rapport and relationships with others on the basis of shared interests and experiences, profoundly and often determinatively disadvantages many [B]lack attorneys in America’s largest law firms” (footnote omitted)). Professor Kevin Woodson endeavors to answer these questions as they relate to the experiences of Black associates. To do so, he draws from 110 interviews that he conducted with “high-status” Black workers in “elite” professional service firms, including seventy-five law firm attorneys, to uncover the sources of “Black disadvantage at elite firms” that have contributed “to a nearly impermeable ‘Black ceiling’” 28 Woodson, The Black Ceiling, supra note 1, at 4, 13–14. and to offer an in-depth analysis of the interrelationship between race, racism, firm culture, 29 See Debra Pickett, 5 Ways Traditional Law Firm Culture Burdens Lawyers of Color, Nat’l L. Rev. (Oct. 10, 2019), https://natlawreview.com/article/5-ways-traditional-law-firm-culture-burdens-lawyers-color [https://perma.cc/HG7U-EYKC] (noting, for example, how a law firm’s reliance on organic or natural development of mentoring relationships between partners and associates can breed racial inequities between the experiences of Black and white associates). organizational leadership, 30 See Amanda Robert, Law Firm Leaders Are Still Mostly White and Male, ABA Diversity Survey Says, ABA J. (May 16, 2022), https://www.abajournal.com/web/article/law-firm-leaders-are-still-mostly-white-and-male-aba-diversity-survey-says [https://perma.cc/33DF-SCK9] (detailing the low percentages of partners of color at large law firms); Noam Scheiber & John Eligon, Elite Law Firm’s All-White Partner Class Stirs Debate on Diversity, N.Y. Times (Jan. 17, 2019), https://www.nytimes.com/2019/01/27/us/paul-weiss-partner-diversity-law-firm.html (on file with the Columbia Law Review) (stating that there is a “broader pattern across big law: the share of partners who are women and people of color is much smaller than the number reflected in the ranks of associates, or those starting law school, not to mention the general population”). and institutional discrimination. 31 See Woodson, The Black Ceiling, supra note 1, at 13–14; see also Leonard M. Baynes, Falling Through the Cracks: Race and Corporate Law Firms, 77 St. John’s L. Rev. 785, 796–834 (2003) (examining the challenges to battling racial discrimination against law firm partners given the case-by-case determinations of whether a partner plaintiff is an employee or not under Title VII); Tiffani N. Darden, The Law Firm Caste System: Constructing a Bridge Between Workplace Equity Theory & the Institutional Analyses of Bias in Corporate Law Firms, 30 Berkeley J. Emp. & Lab. L. 85, 89–90 (2009) (detailing why the associate evaluation process is “an appropriate intervention point for realizing workplace equity in law firms”); Veronica Root, Retaining Color, 47 U. Mich. J.L. Reform 575, 577 (2014) (arguing that the attrition problem among associates of color requires a “change [in] the behavior of white males so that they work to instill more loyalty” to the firm among non-white associates and offering ideas on how firms can incentivize white partners to inspire such loyalty); Eli Wald, BigLaw Identity Capital: Pink and Blue, Black and White, 83 Fordham L. Rev. 2509, 2513–14 (2015) (offering a new model for understanding associates’ relationships with law firms “as complex transactions in which BigLaw and its lawyers exchange labor and various forms of capital—social, cultural, and identity”); David B. Wilkins & G. Mitu Gulati, Why Are There So Few Black Lawyers in Corporate Law Firms? An Institutional Analysis, 84 Calif. L. Rev. 493, 501–02 (1996) (arguing that the “underrepresentation [of Black attorneys in large law firms] is due in part to the way in which the structural characteristics of corporate firms shape the strategic choices of [B]lack lawyers”).

In his book, Woodson explains that the obstacles affecting the pathway to partnership for his Black professional subjects all involved one social dynamic that he called racial discomfort: “the unease that Black professionals experience in White-dominated workplaces because of the isolation and institutional discrimination they encounter,” 32 Woodson, The Black Ceiling, supra note 1, at 4. which is all encompassed within the “racial conditions” and persistent racial stratification of broader U.S. society. According to Woodson, such racial discomfort, which has cumulative, harmful impacts on the careers of Black attorneys at law firms, can be broken down into two categories: social alienation and stigma anxiety. 33 Id. at 5. The first category, social alienation, includes Black associates’ experiences with isolation, marginalization, and reduced access to social capital within their firms due to white partners’ unspoken—and even unconscious—preference to work with and mentor associates “who share similar cultural and social tastes, interests, and experiences”: in other words, associates who are nearly always other white people. 34 Id. The second category, stigma anxiety, “refers to the uneasiness and trepidation that many Black professionals develop in situations where they recognize that they may be at risk of unfair treatment on the basis of race,” a disparate burden that frequently causes Black professionals to engage in what Woodson calls racial risk management by adopting “self-protective [but often backfiring] behaviors to insulate themselves from possible mistreatment.” 35 Id. at 5–6.

This Book Review explores Woodson’s theories and insights against the backdrop of recent high-profile employment discrimination litigation embroiling large law firms. 36 See, e.g., Judgment, Cardwell v. Davis Polk & Wardwell LLP, No. 1:19-cv-10256-GHW, (S.D.N.Y. Jan. 30, 2024), ECF No. 417 (dismissing the complaint because the jury “returned a verdict in favor of Defendants”); Cardwell, No. 1:19-cv-10256-GHW, 2023 WL 2049800 (S.D.N.Y. Feb. 16, 2023), ECF No. 305 (granting in part and denying in part defendants’ motion for summary judgment on aiding and abetting, discrimination, and retaliation claims). In particular, this Book Review interrogates whether (and how) Woodson’s theories regarding social alienation and stigma anxiety are evidenced in the legal documents and proceedings of lawsuits chronicling the narratives told by attorneys who have sued large law firms for race discrimination on behalf of Black firm lawyers and the responses by attorneys who have defended large law firms. 37 See Peter Brooks, Narrative Transactions—Does the Law Need a Narratology?, 18 Yale J.L. & Humans. 1, 11–13 (2006) (demonstrating how differing retellings of the facts among the opinions in a particular case are loaded with “point of view” on the “ways that things ‘are supposed to happen’”). The starting point for this examination is the recognition that large law firms’ general “race problem” goes beyond incidents of ill intent and individual bias. As Woodson makes clear, the problems of high attrition rates and low partnership rates of Black attorneys at large law firms are much more multifaceted and nuanced than overt acts of explicit bias and harmful actions resulting from implicit bias. 38 See Justin D. Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, 57 Duke L.J. 345, 360–62 (2007) (“[P]eople who display strong implicit biases are often not the same people who demonstrate strong explicit biases.”); Nicole E. Negowetti, Implicit Bias and the Legal Profession’s “Diversity Crisis”: A Call for Self-Reflection, 15 Nev. L.J. 930, 936 (2015) (“Implicit biases are unconscious mental processes based on implicit attitudes or . . . stereotypes that are formed by one’s life experiences and that lurk beneath the surface of the conscious. They are automatic; ‘the characteristic in question . . . operates so quickly . . . that people have no time to deliberate.’” (footnote omitted) (quoting Christine Jolls & Cass R. Sunstein, The Law of Implicit Bias, 94 Calif. L. Rev. 969, 975 (2006))); see also Joan C. Williams, Marina Multhaup, Su Li & Rachel Korn, ABA & Minority Corp. Couns. Ass’n, You Can’t Change What You Can’t See: Interrupting Racial and Gender Bias in the Legal Profession 7–10 (2018), https://biasinterrupters.org/wp-content/uploads/2024/05/You-Cant-Change-What-You-Cant-See-Executive-Summary.pdf [https://perma.cc/K2XJ-8BDU] (documenting “how implicit gender and racial bias . . . plays out in everyday interactions in legal workplaces and affects basic workplace processes such as hiring and compensation”). Such problems are intertwined with, and fortified by, an unspoken white workplace culture and a baseline that neglects the role that racial comfort plays in career advancement, stagnation, or foundering in white spaces. 39 See Elijah Anderson, “The White Space”, 1 Socio. Race & Ethnicity 10, 10 (2015) (describing “the white space” in part as “overwhelmingly white neighborhoods, restaurants, schools, universities, workplaces, churches and other associations, courthouses, and cemeteries . . . that reinforce[] a normative sensibility in settings in which [B]lack people are . . . not expected, or marginalized when present”). To top it off, the problems are consistently reinforced by longstanding, persistent and embedded racial narratives 40 See Mario L. Barnes, Black Women’s Stories and the Criminal Law: Restating the Power of Narrative, 39 U.C. Davis L. Rev. 941, 952 (2006) (asserting that understanding the production of narrative “helps us to understand in a world of competing facts and inferences, whose story is more likely to become officially adopted”); Richard Delgado, Storytelling for Oppositionists and Others: A Plea for Narrative, 87 Mich. L. Rev. 2411, 2413 (1989) (“Stories, parables, chronicles, and narratives are powerful means for destroying mindset[s]—the bundle of presuppositions, received wisdoms, and shared understandings against a background of which legal and political discourse takes place.”); Llezlie L. Green, Erasing Race, 73 SMU L. Rev. Forum 63, 67 (2020), https://scholar.smu.edu/cgi/viewcontent.cgi?article=1013&context=smulrforum (on file with the Columbia Law Review) (asserting that narratives are “also the source of mindsets” and noting how “[f]act-finders . . . filter . . . stories through their own narrative understandings of how the world works”); Charles Lawrence III, Listening for Stories in All the Right Places: Narrative and Racial Formation Theory, 46 Law & Soc’y Rev. 247, 250–51 (2012) (highlighting how an individual’s “performance [can become a] part of the narrative that constructs race” because that performance is “received against . . . stories and images” that already exist about the individual’s racial group). about factors like Black incompetence and Black disinterest in corporate work, narratives common to both BigLaw workplaces and BigLaw employment discrimination proceedings.

Despite the “[g]rowing [w]ave” 41 See Carmen D. Caruso, The Growing Wave of Gender Discrimination Lawsuits Against BigLaw, ABA Section of Litig., Diversity & Inclusion, Summer 2017, at 5, https://www.americanbar.org/content/dam/aba/publications/litigation_committees/diversity_inclusion/issues/summer2017.pdf (on file with the Columbia Law Review); Andrew Maloney, Amid Big Law Focus on Performance, Law Firms Hit by Wave of Employment Claims, Am. Law. (Aug. 6, 2024), https://www.law.com/americanlawyer/2024/08/06/amid-big-law-focus-on-performance-law-firms-hit-by-wave-of-employment-claims/ (on file with the Columbia Law Review) (“Big Law has been hit with a wave of lawsuits in recent months, with discrimination and compensation claims from both current and former employees front and center.”). of employment discrimination litigation against large law firms as well as the growing backlash against diversity, equity, and inclusion (DEI) 42 See Emma Goldberg, Facing Backlash, Some Corporate Leaders Go ‘Under the Radar’ With D.E.I., N.Y. Times (Jan. 22, 2024), https://www.nytimes.com/2024/01/22/
business/diversity-backlash-fortune-500-companies.html (on file with the Columbia Law Review) (highlighting that anti-DEI groups have filed suits to challenge a number of diversity programs and stating that, even without a legal decision on diversity programs in the workplace, companies and firms are reevaluating their DEI programs). in large law firms, the academic and popular literature on the history, economics, and sociology of law firms has not kept pace. This literature has scarcely considered how the culture of large law firms has shaped the narrative and storytelling strategies used by hiring and promotion committees to rationalize claims of discrimination and anecdotal and empirical evidence of discrimination to internal constituencies (partners and associates) and external observers (courts, clients, law schools, legal services industry peers, and media outlets). Similarly, the academic and popular literature has seldom considered how the narratives used by plaintiff- and defense-side legal teams in pretrial, trial, and appellate practice work to construct identity for the individuals and the groups involved, 43 The ABA Model Rules of Professional Conduct permit the lawyer to construct client, party, and witness identity in court filings and oral communications. See, e.g., Model Rules of Pro. Conduct r. 3.1 (ABA 2023) (permitting a broad scope of lawyer advocacy, accounting for ambiguities and changing limits of procedural and substantive law); id. r. 3.3 cmt. (permitting a lawyer to use “persuasive force” in advocacy within adjudicative proceedings); see also Anthony V. Alfieri, The Ethics of Violence: Necessity, Excess, and Opposition, 94 Colum. L. Rev. 1721, 1725–26 (1994) (book review) (describing the pain experienced by parties when lawyers “act to erase their identities, to silence their narratives, and to suppress their histories during advocacy”). The Model Rules also permit the lawyer to construct client, party, and witness identity in nonadjudicative proceedings, such as arbitration and mediation, as well as in extrajudicial pretrial, trial, and post-trial statements to the public. See Model Rules of Pro. Conduct r. 3.9 cmt. (permitting lawyers to “present facts, formulate issues and advance argument” in nonadjudicative proceedings before legislative bodies and administrative agencies acting in a rulemaking or policymaking capacity); see also id. r. 3.6 (permitting lawyers to make extrajudicial statements to the public even if there is a likelihood of materially prejudicing an adjudicative proceeding in the matter, provided the likelihood is not “substantial”). For further discussion of nonadjudicative proceedings, see Michael Z. Green, Reconsidering Prejudice in Alternative Dispute Resolution for Black Work Matters, 70 SMU L. Rev. 639, 651–52 (2017) (indicating that “[B]lack persons, more likely than any other racial group, tend to find themselves pressured to ‘cover’ or conform to norms that deny their racial identity at work”). and how such pretrial, trial, and appellate filings work to reinforce and reinscribe the very social discomfort that results in “Black disadvantage” in large law firms.

To highlight and rectify these omissions, this Book Review analyzes one recent race discrimination case brought against a law firm by a former Black associate as a means of exploring and understanding the narratives that plaintiff-side legal teams representing former law firm employees and defense-side teams representing large law firms tend to tell and retell in arguing their cases. Specifically, this Book Review probes the language that legal teams have used to allege and rebut facts and, likewise, to assert and defend claims in their pleadings, memoranda of law, discovery materials, hearing and trial transcripts, and even press releases. This Book Review then illustrates how such legal language has helped to reinforce and sustain the troubling tropes of racial inferiority, deficiency, and incompetence and the troubling limitations placed on how Black people are expected to perform their racial identity in predominantly white workspaces, limitations that have enabled and nourished racial discomfort and its negative impacts in elite firms and in broader society. 44 See Angela Onwuachi-Willig, Roberts’s Revisions: A Narratological Reading of the Affirmative Action Cases, 137 Harv. L. Rev. 192, 198 (2023) (“Stories and storytelling play a critical role in the law. . . . In summary, stories are vital to lawyering and the legal profession because ‘the ways stories are told, and are judged to be told, make[] a difference in the law.’” (second alteration in original) (footnote omitted) (quoting Peter Brooks, Narrative Transactions—Does the Law Need a Narratology?, 18 Yale J.L. & Humans. 1, 3 (2006))); see also Angela Onwuachi-Willig & Anthony V. Alfieri, (Re)framing Race in Civil Rights Lawyering, 130 Yale L.J. 2052, 2068–108 (2021) (book review) (describing how troubling racial images, stereotypes, and narratives about Black people persist in today’s legal cases); David B. Wilkins, On Being Good and Black, 112 Harv. L. Rev. 1924, 1954 (1999) (reviewing Paul M. Barrett, The Good Black: A True Story of Race in America (1999)) (noting the sociopsychological “dynamic” that leads some Black associates “to believe that in order to be seen as ‘good’ by whites” in BigLaw workplaces, they “must make every effort to minimize the extent to which these same people saw [them] as ‘[B]lack’”). The upshot for large law firms is a workplace environment in which whiteness constitutes the background racial norm and maleness constitutes the preferred gender norm for filtering experience, organizing legal representation, and defining professionalism and success.

This Book Review proceeds in four parts. Part I sets the stage for understanding the harms that racial discomfort causes for Black associates in large law firms. In so doing, Part I returns to the story of the 1989-to-1996 cohort from Cleary, New York, highlighting the reasons that many of those Black associates asserted for their own departures from the firm and revealing how Woodson’s findings in The Black Ceiling mirror and contrast those reasons. Part I also provides data regarding the persistence of problems with Black associate recruitment and attrition at large law firms before partnership. Part II details Woodson’s key insights about what builds and sustains—or complicates and thwarts—the ability of Black people to thrive in elite law firms. 45 See Woodson, The Black Ceiling, supra note 1, at 2–3.

Part III extends Woodson’s analysis about how the problem of racial disadvantage in elite law firms is tied to racial discomfort, specifically social alienation and stigma anxiety, to the contemporary field of employment discrimination. Part III specifically tracks the recent, high-profile case of Cardwell v. Davis Polk & Wardwell LLP, filed by Kaloma Cardwell, a former fourth-year Black associate, against the prominent, New York–based law firm, Davis Polk & Wardwell. 46 Verified Complaint With Jury Demand at 1–2, Cardwell v. Davis Polk & Wardwell LLP, No. 1:19-cv-10256-GHW, 2019 WL 5860596 (S.D.N.Y. filed Nov. 4, 2019), ECF No. 1 [hereinafter Complaint] (alleging “racial discrimination and retaliation”). Informed by relevant pleadings, memoranda of law, discovery materials, hearing and trial transcripts, and press releases, Part III contrasts the racial discomfort stories, and related social alienation and stigma anxiety narratives, crafted by Cardwell’s lawyers and other plaintiff-side litigation teams representing Black law firm employees with the competing narratives of character deficiency and professional incompetence presented by Davis Polk’s lawyers and other defense-side litigation teams that represent large law firms in employment discrimination cases.

Part IV proposes remedial workplace strategies that law firms may employ to better address the harmful results stemming from racial discomfort. Part IV offers these suggestions against the backdrop of the evolving reconstitution and growing erasure of DEI recruitment, promotion, and retention programs across the country 47 See Atinuke O. Adediran, Racial Targets, 118 Nw. U. L. Rev. 1455, 1461–68, 1491–94 (2024) (arguing that racial targets, as opposed to quotas, are legally defensible and describing the “conservative backlash” against racial targets, particularly “[o]pen-ended . . . goals and aspirations that do not include a stated year by which the goal would be met”); see also Brenda D. Gibson, Affirmative Reaction: The Blueprint for Diversity and Inclusion in the Legal Profession After SFFA, 104 B.U. L. Rev. 123, 171–80 (2024) (proposing how diversity efforts can be reconstituted in legal education and the Bar post-Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141 (2023)); Mariana Larson, Diversity on Trial: Navigating Employer Diversity Programs Amidst Shifting Legal Landscapes, 8 Bus. Entrepreneurship & Tax L. Rev. 239, 254 (2024) (making recommendations for promoting DEI after SFFA and arguing that “employers should think about focusing and shining a light on their inclusion efforts, rather than diversity”); Nancy B. Rapoport & Joseph R. Tiano, Jr., Walking the Data Walk: Using Time Entries to Advance DEI Initiatives, 79 Bus. Law. 1, 5 (2024) (“To retain associates, each one must get roughly the same types of experience to be able to advance up the law firm ladder. Time entries, mined correctly, can make BigLaw a more welcoming place for people of diverse backgrounds.”). since the Supreme Court issued Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA). 48 143 S. Ct. 2141 (2023). Building on Woodson’s research, this evaluation identifies and assesses innovative firm- and industry-wide policies that can mitigate the impact of racial discomfort on Black professionals and may enable Black professionals to avoid or overcome racial disadvantage in elite firms and thus thrive in their careers at large law firms. 49 See Woodson, The Black Ceiling, supra note 1, at 125–45 (offering suggestions for addressing the low retention and promotion rates of Black professionals at BigLaw firms). For other recent proposals of what BigLaw firms can do to better recruit and retain attorneys of color, see generally Debo P. Adegbile, Lisa Davis, Damaris Hernández & Ted Wells, Raising the Bar: Diversifying Big Law (Anthony C. Thompson ed., 2019).