EEOC chair requested 'extensive' info from law firms on DEI practices and hiring; did it cross a line?
A series of letters sent to law firms by the acting chair of the U.S. Equal Employment Opportunity Commission is raising eyebrows. (AP File Photo/David Zalubowski)
Lawyers and legal experts are expressing concerns that the Equal Employment Opportunity Commission’s recent request for comprehensive information about diversity, equity and inclusion-related employment practices at major law firms is not only invasive but also exceeds its authority.
On Monday, EEOC acting chair Andrea Lucas sent letters to Perkins Coie, Kirkland & Ellis and 18 other major firms, stating concerns over their employment and hiring practices, specifically those involving DEI. Lucas says in the letters the firms’ practices might violate Title VII of the Civil Rights Act of 1964, which makes it illegal to discriminate against a job seeker or employee because of race, color, religion, national origin or sex.
Lucas does not have the authority to act or speak on behalf of the entire EEOC, according to the Lawyers’ Committee for Civil Rights Under Law, a nonprofit organization formed in 1963 at the request of President John F. Kennedy. Official EEOC action requires a quorum of the five-member commission.
“While the rules allow individual EEOC commissioners to initiate a charge of discrimination on their own initiative, all charges must be made under penalty of perjury,” the Lawyers’ Committee said in a press release. “This prevents commissioners from initiating frivolous investigations or abusing the legal process.
“Lucas’ letters are not charges of discrimination. As such, they carry no more weight of authority than if they had been written on a cocktail napkin by any member of the public.”
Lucas’ letters to the 20 law firms ask for detailed information about internships, scholarships and fellowships for law students and their hiring and compensation practices. They also ask the firms to identify all law students and attorneys who have applied for positions in the past six years. The deadline to respond is April 15.
“The EEOC is prepared to root out discrimination anywhere it may rear its head, including in our nation’s elite law firms,” Lucas said in a press release issued by the agency, which enforces federal laws that protect workers from discrimination. No one is above the law—and certainly not the private bar.”
Paulette Brown, a former AmLaw 100 chief diversity officer, contends that DEI programs and initiatives are not illegal and are consistent with the original intent of the Civil Rights Act.
“Many firms over the past several years recognized the disparities that existed in their law firms and made a determination to be more intentional in their hiring, retention and promotional opportunities,” says Brown, a past president of both the ABA and the National Bar Association. “They have not discriminated. What has happened is a widening of the net, still getting the most qualified people and being more inclusive.”
“Everyone should be reminded that excellence and diversity are not mutually exclusive,” Brown adds. “In fact, they go hand in hand.”
Kim Hermann, executive director of the nonprofit Southeastern Legal Foundation, views the EEOC’s request from a different perspective. “DEI hiring practices have become discriminatory rather than maintaining a focus on merit hiring,” she says.
“It is hard to say what the reactions to these letters will be, as too many firms have clearly taken a stance to try to maintain their illegal DEI practices,” Hermann adds. “However, we are glad to see the Trump administration keep another promise and aim to dismantle unconstitutional and illegal programs in law firms across the country. We hope that all law firms take steps to change their policies and hire based on merit and legal practices.”
Details of the EEOC’s request
Perkins Coie won a temporary restraining order in a lawsuit filed against the Trump administration over a March 6 executive action targeting the law firm and its clients. (Image from Shutterstock)In the letter to Perkins Coie, Lucas states that the law firm has “touted its hiring practices, including its diversity fellowships, which have historically been limited to ‘students of color,’ as ‘helping create and foster one of the strongest and most diverse talent pipelines in the legal profession’ and ‘designed to increase the representation of racially diverse lawyers at the firm.’”
Lucas says she is concerned that Perkins Coie’s diversity and inclusion or other employment programs and practices “may entail unlawful disparate treatment” under Title VII of the Civil Rights Act. Lucas singles out diversity-focused internships, fellowships and scholarships, and tells the firm to provide detailed information about the application process and selection criteria used for them.
In addition, Lucas tells the firm to provide detailed information on a “searchable Excel spreadsheet” about the applicants, including their names, sex, race, phone number, email address, law school and law school GPA, along with whether they were accepted.
Similar demands are found in Lucas’ letters to the other 19 firms. In its press release Monday, the EEOC also stated that it had established an email for whistleblowers to report potentially unlawful DEI practices at law firms.
The EEOC declined the ABA Journal’s request for comment.
Jocelyn Samuels, an EEOC commissioner fired by Trump, holds a keepsake from colleagues from her time in the U.S. Department of Justice. (Photo by Robb Hill for The Washington Post via Getty Images)Jocelyn Samuels, a former EEOC commissioner, says the agency’s request seeks “extensive information, some of it personally identifiable” without an appropriate legal basis.
Title VII, Samuels says, is a “charge-driven statute” and does not authorize the EEOC to “engage in a fishing expedition,” nor does it “require employers to respond to random inquiries seeking substantial information about their employment practices.”
Samuels emphasizes that absent a charge, employers are under no obligation to respond and “voluntarily provide information.”
Samuels, who was initially appointed as a Democratic commissioner to the EEOC by Trump in 2020, received an email in January removing her from her position. She was one of two Democratic members of the five-member board to be fired, along with the commission’s general counsel, Bloomberg Law reports.
She joined a group of six other former EEOC chairs, commissioners, general counsel and legal counsel in sending a letter to Lucas on Tuesday to share “grave concerns” over the information request letters to law firms. These officials also said the requests in those letters appear to exceed Lucas’ authority under Title VII of the Civil Rights Act.
“As you know, the EEOC has no authority to require information from employers under Title VII simply by the request of a commissioner,” according to the agency’s former officials. “If you had a sufficient basis in evidence to believe that any of the recipients of your letters had engaged in discrimination in violation of Title VII, you would have had the authority to file a commissioner charge, signed under penalty of perjury, to begin an investigation.”
“But Title VII does not authorize the sort of public demand for information encompassed in your letters to these law firms,” they added. “Nor does Title VII require these firms to respond to your letter or permit EEOC to impose penalties on firms for declining to respond.”
The former EEOC officials said Lucas’ request raises additional questions under the Paperwork Reduction Act, which aims to protect Americans from the burdensome collection of information. They said it also conflicts with the EEOC’s longstanding position on DEI, which no member has the authority to unilaterally change.
They asked Lucas to withdraw the letters she sent to law firms “to preserve the credibility of the commission.”
None of the 20 firms that received letters responded to the ABA Journal’s request for comment.
Trump administration targets DEI
One of the executive orders President Donald Trump signed on the first day of his second term called for the elimination of government diversity programs and the termination of all federal offices and positions related to diversity, equity and inclusion. (Photo by Christopher Furlong/Getty Images)Leading up to his election and immediately thereafter, President Trump promised to pursue and rid the country of DEI programs not just in the public but also in the private sphere.
A January 22 fact sheet, published two days after Trump took office, stated that the administration would be pushing the private sector to end illegal DEI discrimination and practices. Also in January, Lucas said her “priorities will include rooting out unlawful DEI-motivated race and sex discrimination.”
Jonathan Pollard, a Florida employment lawyer who represents plaintiffs, says DEI in law firms ended up “being a bunch of sanctimonious, performative nonsense,” but the Trump administration’s “anti-DEI witch hunt is going too far in the opposite direction” and “appear calculated to chill any efforts to boost diversity, full stop.”
Pollard says it’s “legally problematic” if any firms have operated based on a quota system, but that the federal government “has no business telling law firms who to hire or where to recruit.”
He also says firms should avoid quotas and instead recruit from a broad range of schools, looking for unconventional, first-generation and non-traditional candidates.
The Trump administration’s efforts to eliminate DEI practices have faced legal hurdles. On Feb. 21, a federal judge in Baltimore granted a preliminary nationwide injunction halting portions of the Trump administration’s efforts to eliminate DEI. The judge specifically halted terminations of DEI-related contracts and requirements that government contractors certify that they do not engage in DEI practices that violate antidiscrimination laws.
In a March 14 order, a three-judge panel of the 4th U.S. Circuit Court of Appeals at Richmond, Virginia, lifted the lower court’s injunction.
Chief Judge Albert Diaz wrote that the Trump administration met its burden of justifying a stay of the injunction while litigation challenging its efforts to eliminate DEI continues. However, while Diaz said he would “reserve judgment” on how the administration enforces its orders, he added that they “may well implicate cognizable First and Fifth Amendment concerns.”
The U.S. Supreme Court is set to rule on an employment discrimination case this spring that could bolster the Trump administration’s efforts. The case, Ames v. Ohio Department of Youth Services, involves an Ohio woman, Marlean Ames, who contends she lost out on a promotion and was then demoted because she is straight.
The district court granted summary judgment to the state, holding that Ames lacked evidence of “background circumstances” necessary to establishing her prima facie case for her claim based on sexual orientation and she lacked evidence of pretext for purposes of her sex-discrimination claim. The Cincinnati-based 6th U.S. Circuit Court of Appeals affirmed.
In addition, the Trump administration has taken aim in recent weeks at several prominent law firms that Trump says carried out “harmful activity.” Through executive orders, the president has singled out Perkins Coie, which worked with Hillary Clinton’s 2016 presidential campaign; Paul, Weiss, Rifkind, Wharton & Garrison; and Covington & Burling.
Regarding the EEOC’s request for DEI information from law firms, Ray Brescia, a law professor at Albany Law School and the author of Lawyer Nation: The Past, Present and Future of the American Legal Profession, points out that until relatively recently, only white men could practice law in the United States.
Even today, the U.S. legal profession still needs to diversify its ranks, Brescia says, noting that 79% of the legal profession is white and 61% are men, according to 2023 ABA statistics.
“Efforts like this will only set the profession back decades, if not centuries,” Brescia says.
See also:
Paul Weiss is latest law firm targeted by Trump administration
Trump expands retribution campaign against law firms that aided his foes
Diversity references scrubbed from BigLaw websites amid DEI probes; informal guidance issued
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