In 2024, one of the main challenges in terms of diversity, equity and inclusion (DEI) is the recruitment of diverse talent, which involves identifying specific skills or recognizing the value that an individual’s personal background can provide to occupy a position. within the organization.

While it is now common for organizations, including law firms, to adopt initiatives to promote DEI through corporate policies, minority committees, mentoring programs, wellness departments, and the implementation of affirmative action or quotas , under the premise of ensuring that the right talent is in the right place, it is possible that not all initiatives will be well received by the Supreme Court of the United States.

On this topic, it is worth reviewing the June 2023 decision of the Supreme Court of Justice of the United States by which it resolved the cases Students for Fair Admissions V. Fellows of Harvard College and Students for Fair Admissions V. University of North Carolina , and that considers that higher education institutions should not take into account criteria such as the racial community of origin of the applicant as a factor in admissions, since they would be violating the principle of equality before the law .

In this regard, Chief Justice John Roberts wrote that: “the Equal Protection Clause of the Fourteenth Amendment applies without regard to any difference of race, color or national origin.”

“The guarantee of equal protection cannot mean one thing when applied to an individual and another when applied to a person of a specific skin color,” Justice Roberts reaffirmed.

Justice Sonia Sotomayor (the first Hispanic justice), in her dissenting opinion, criticized the Court’s ruling by pointing out that “ignoring race will not equalize a society that is racially unequal. What was true in the 1860s and, again in 1954, is true today: equality requires the recognition of inequality.”

This decision of the highest Court annuls the precedent created in 2003 (more than 20 years ago) in the Grutter v. Bollinger, highlighting the binding nature of the decisions issued by the Supreme Court of Justice.

In Grutter v. Bollinger , the same Court concluded that the University of Michigan Law School’s use of race in its admissions process was constitutional.

The Court held that the Law School had a compelling interest in achieving a diverse student body and that its admissions policy, which considered race as one factor among others in a holistic review of each applicant, was narrowly tailored to achieve that interest.

For global firms—and other organizations—there is an even bigger challenge in how to address and implement a DEI culture and, specifically, promote the hiring of diverse talent.

To further explore this topic, LexLatin interviewed Elizabeth Stern , Latina attorney, leader of the global Mobility & Migration practice and managing partner of the Washington office of the international firm Mayer Brown.

Stern, of Latin descent as the daughter of an Ecuadorian diplomat, has lived exposed to an environment of cultural diversity. Her personal and professional experience gives her valuable perspective to offer insights on how to adopt a DEI culture in a law firm and the elements that can influence its development.

Taking into account your experience in immigration and mobility, can it be said that it is now more of a rule than an exception to incorporate diversity criteria into employability policies?

Liz Stern: Absolutely. In my career I have also been exposed to the value of diverse talent in the workplace. Every day I see how the world’s leading companies not only hire top talent, but look for people with distinctive experiences and backgrounds to enhance their capabilities.

Talent is the engine that drives an organization, and diversity, equity and inclusion strengthen the engine by unlocking new and varied skills and insights.

As a recent example, a US venture capital organization identified a need to hire a CEO with experience managing the type of market uncertainty we are experiencing in this post-Covid era.

Hiring a CEO who had been through turbulence in a Latin American market became a priority for them. A year later, the Colombian CEO they recruited and identified is on track to set record profits, despite a volatile economy.

As a managing partner, does a law firm find it difficult to maintain diversity in its talent acquisition process?

Liz Stern: Once a company has established welcoming people from different backgrounds, hiring diverse talent can and does become a reality.

Adopting a culture of inclusion and equality from all positions (leaders, employees, recruiters) is fundamental to the value proposition of a firm or any organization.

However, maintaining this momentum requires constant attention. It is not only important to focus on recruiting, but also on providing daily support and nurturing to all the people who join the company.

A setback?

Do you think the US Supreme Court ruling indicating that positive inclusion actions can violate the right to equality will affect the acquisition of diverse talent?

Liz Stern: I think the decision could initially affect the pipeline, given the potential reduction in the number of college students from diverse communities. However, I do not anticipate a negative impact on firms that promote openness in recruiting to attract people with diverse backgrounds and characteristics.

At least at our firm we work to create an environment of equality and receptivity to different points of view so that this broad body of talent can actively participate in workplace decisions and business development.

Factual optimism

Do you think that the population of Latin lawyers in international firms could decrease after the Court’s decision? As a lawyer of Latin descent, how do you feel about this situation?

Liz Stern: It would be a very significant loss at a time when socially, commercially and politically we need to enrich our talent base.

Although the decision appears to represent a setback for Latino law student admissions, two other powerful factors are likely to increase the population and success of Latino law students:

• The first is demographics, as the Latino population continues to grow in the United States, with more than 62.5 million Latinos in the country in 2021 (approximately 19% of the US population). Pew Research reports that in 2021, 2.5 million Latinos held advanced degrees such as master’s degrees or doctorates, a huge increase from 710,000 in 2000.
• The second factor is economics, as the public and private sector face a talent shortage, and particularly require diverse representation to address changing cultural, communication and skills needs. Latino attorneys provide the multifaceted skill necessary to address this transformation.

Antidiversity, a risk?

Do you think a new anti-diversity approach is emerging that contradicts ESG criteria?

Liz Stern: While there has been an increase in legal challenges to DEI initiatives and programming, I think we will continue to see companies remain committed to DEI efforts.

Additionally, we continue to believe that diverse leadership creates more inclusive and equitable decision-making, which benefits both our talent and our clients.