Big Law firms grappling with a sweeping Trump administration demand for their hiring and diversity data now must navigate the thorny path of whether to comply and how it could be enforced.
Letters sent March 17 to 20 law firms by acting chair of the Equal Employment Opportunity Commission, Andrea Lucas, say their diversity, equity, and inclusion practices may be discriminatory under Title VII of the 1964 Civil Rights Act.
The letters tell major firms such as Morgan Lewis and Simpson, Thacher & Bartlett to provide extensive data on decisions including hiring, promotions, and diverse staffing requests from their corporate clients by April 15.
Providing the requested information could further engage law firms in what many see as President Donald Trump’s escalating assault on the legal ecosystem as part of his broader anti-DEI push.
“If a law firm were to ask me, I would say don’t give up anything you don’t have to and be ready to challenge it,” said Kent Greenfield, a law professor at Boston College Law School.
The firms did not reply to requests for comment on the letters.
Former EEOC officials and employment attorneys have already questioned the enforceability and the legality of the commission’s requests.
Seven largely Democratic former EEOC attorneys and officials on March 18 sent Lucas a letter that outlined their concerns that the commission lacked authority to probe the firms.
“Law firms don’t have a legal responsibility to respond” to the EEOC, said Chai Feldblum, a former commissioner who signed the letter and a former attorney at Morgan Lewis.
An EEOC spokesperson declined to comment on Lucas’ letters to firms and the former officials’ response. “Big Law is notorious for racial discrimination, which is illegal at the federal level under Title VII, not to mention laws in all 50 states. EEOC has clear authority to enforce Title VII,” a senior White House official said in an emailed statement.
The EEOC published informal guidance Wednesday that said DEI-related employment decisions can violate Title VII even when they are only in part based on a protected characteristic like race or sex.
EEOC Authority
The letters to law firms are an unusual break from typical EEOC investigations, which are normally initiated by workers filing charges against employers.
Individual commissioners are able to file self-directed charges. They require the same information as one filed by a member of the public, meaning they need to include a “concise statement of the facts” that constitutes “alleged unlawful employment practices,” according to the agency’s website.
If there were a “reasonable basis,” then Lucas could file a commissioner charge confidentially, said David Lopez, Rutgers Law School professor and EEOC general counsel during the Obama administration.
“But here, it’s almost like she’s following some top-down instruction to suggest falsely these companies are under [formal] investigation,” he added.
The agency is authorized to conduct “directed investigations” under the Age Discrimination in Employment Act and the Equal Pay Act, but it is not given that authority under Title VII, the statute Lucas cites, Feldblum said.
Confidentiality Concerns
The letters also break from EEOC precedent by publicly announcing the investigation. Typically the agency’s process remains confidential. Only when a lawsuit is filed, which happens with only about 100 of the tens of thousands of charges filed annually, does the EEOC make that information public.
“It is simply not fair to spotlight 20 law firms, and the statute does not anticipate that type of public shaming outside of filing a lawsuit,” Feldblum said.
Former EEOC officials also cited a possible breach in the request to a slew of firms of the Paperwork Reduction Act. The statute requires agencies to go through procedural requirements, and receive Office of Management and Budget approval, to solicit information from 10 or more members of the public.
James Kerwin, senior counsel at Mountain States Legal Foundation, said he shares the EEOC’s DEI concerns and sees no issues with their request.
“I don’t see any problem with the EEOC seeking information that seems to be voluntary,” Kerwin said.
The commission also opened an email address for whistleblowers to submit information.
The information from the emails could also be used to provide evidence of discrimination for a commissioner to file a charge, Feldblum said.
Diversity Pressure
Firms could choose to fight this EEOC probe in court, perhaps through First Amendment claims to challenge the scope of the investigations, according to Greenfield. Or firms could simply keep their data to themselves.
The targeted firms should not hand over the information the EEOC is requesting, according to one diversity professional at an AmLaw 100 firm who spoke on the condition on anonymity.
And if firms do decide to comply, the data collection required is pretty burdensome under a tight April 15 deadline, the person said.
The list does not include large law firms close to Trump or those involved in matters related to him including Gibson, Dunn & Crutcher, Sullivan & Cromwell, and Jones Day, which all feature similar diversity and inclusion webpages. Lucas is a former partner at Gibson Dunn, and Sullivan & Cromwell is a recent addition to Trump’s personal outside counsel roster.
Firms targeted by the EEOC letters had in many cases increased their public-facing commitments to DEI goals in recent years, both on their own accord and due to client requests.
“There’s immense market pressure to show you have really progressive diversity and inclusion programs,” said Joshua Roffman, of Virginia-based boutique firm Roffman Horvitz, who was formerly at Morgan Lewis. “They’re being caught in a place right now where there’s obviously huge, huge pushback.”
But as the Trump administration continues its anti-DEI efforts, it’s becoming harder for clients and attorneys to avoid getting stuck in the crossfire, according to Bryson Malcolm, founder of recruiting firm Mosaic Search Partners.
“Even if they aren’t on the list, there is a chaos element here, they could be on the next list in a couple of weeks,” Malcolm said.
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