July 9, 2009 2:29 PM

Jackson Lewis Diversity Head: Weigh Potential Bias Suits When Cutting Jobs

Posted by Rachel Breitman

According to the U.S. Equal Employment Opportunity Commission, workplace discrimination claims jumped by 15 percent in 2008. The 13,000-case rise between 2007 and last year marked the largest single-year jump in EEOC history.  And with layoffs, pay cuts, and hiring freezes continuing into 2009, there's no reason to believe this trend should stop.

That's why Weldon Latham, who joined Jackson Lewis last week as head of the new corporate diversity counseling group, says companies should be particularly careful in their hiring and firing policies right now. Latham, who joined the firm's Reston, Virginia, office from Davis Wright Tremaine, has represented such clients as Pepsico, Texaco, and Coca Cola on huge employment-discrimination class actions in the past. As companies hunker down for a potential onslaught in these kinds of suits, he suggests they head off problems before they start.

How did you get started focusing on diversity in employment matters?

In 1996, while at Shaw Pittman [now Pillsbury Winthrop Shaw Pittman], I was contacted by the CEO of Texaco, who asked me to represent him in a class action lawsuit, which we settled for $176 million. This led to me representing a number of other companies who were hit by class action cases. In 1999, I was hired by Coca Cola to help resolve a  similar case for $192 million and enhance their corporate diversity program. My group, which includes John Bryson II and Michael Hatcher, also worked at Holland & Knight and then Davis Wright Tremaine.

And you have a background in politics?

I was national cochair for Hillary Clinton's presidential campaign. She had a clear message to help companies perform better and have more diverse workforces. I was later a fund-raiser for President Obama, who is also committed to fairness in the workplace. I was also national cochair for President Bill Clinton's reelection campaign in 1996, and a fund-raiser for Senator [John] Kerry''s presidential campaign in 2004. I was assistant general counsel of the White House office of management and budget during the Ford administration and general deputy assistant secretary at the Department of HUD at the Carter administration.  

What are some of the biggest issues companies are facing now in terms of employment discrimination suits?

In corporations, there is a lot of pressure from Congress and taxpayers, and customers and stockholders to be less tolerant of race, sex, or age discrimination. The President is getting funding for the Equal Employment Occupation Commission to give more resources to investigate allegations of discrimination.

Has the uptick in layoffs lead to more discrimination cases?

There has been an increase. Companies have to make sure there is no unlawful adverse impact on women and minorities when they have layoffs. Companies would often lay people off on a "last-hired, first-fired" basis. Women and minorities are often the last hired, so they are the first fired. We encourage companies to set up a business-based-need plan, laying off the people who they need less. It is also important to make sure you have a diversity of leadership at a company.

Do you see the Supreme Court decision on Ricci v. DeStefano affecting hiring at law firms or companies?

Tests for hiring and promotion should relate to talents to be successful in a given industry with no inappropriate discrimination.

Do you also counsel law firms in the area of diversity?

I have been called by more law firms who have regularly sought my advice, but none have been willing to pay the cost. Diversity is definitely an issue at law firms, and I spoke about it at the American Bar Association's president's special summit on diversity in the bar, but firms aren't always as ready to pay for my counsel about how to take preventative steps. 

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