EEOC Investigating Prominent Law Firms for Potential DEI “Violations”

Andrea Lucas, the Acting Chair of the EEOC, took an unprecedented step earlier this week by sending letters to 20 prominent law firms demanding information regarding specific “DEI”-related employment practices. According to the EEOC’s press release, these investigations are “[b]ased on publicly available information,” not any specific charges brought by individuals, and notes agency “concerns that some firms’ employment practices…may entail unlawful disparate treatment…in violation of Title VII of the Civil Rights Act of 1964.” 

The letters come less than two weeks after President Trump issued Executive Order (EO) 14230, “Addressing Risks From Perkins Coie LLP.” That EO demanded that the security clearances be suspended for all individuals at the law firm, that federal contractors disclose any business they do with the firm (whether or not related to a government contract), and that federal contracts held by the firm or organizations doing business with the firm be cancelled “to the maximum extent permitted by applicable law.” 

But less talked about is Section 4 of EO 14230 which calls on the Chair of the EEOC to “review the practices of representative large, influential, or industry leading law firms for consistency with Title VII of the Civil Right Act of 1964.” In particular, the EO instructs the EEOC to investigate “whether large law firms reserve positions, such as summer associate spots, for individuals of preferred races; promote individuals on a discriminatory basis: permit client access on a discriminatory basis: or provide access to events, trainings, or travel on a discriminatory basis.” 

Just 11 days later, Acting EEOC Chair Lucas sent investigation letters to prominent law firms, as instructed. Perhaps not surprisingly, Perkins Coie is on that list, as well as 19 other well-known law firms – all of which were publicly identified by the EEOC in its press release. The press release notes that “EEOC is prepared to root out discrimination anywhere it may rear its head, including in our nation’s elite law firms,” Lucas said. “No one is above the law—and certainly not the private bar.”  

The EEOC also published the actual letters sent to these firms, revealing that the “public statements” on which the agency relied include firms’ own statements on their websites, legal filings, and inclusion in publicly-available third-party diversity assessments or rankings. 

The letters demand wide swaths of employment data stretching back many years. Importantly, all employers – not just law firms – should take note that many of the information requests relate to the effect of the law firm’s DEI policies and practices on selection decisions. And all of the letters request applicant and hire data including race and sex information, for various types of selection decisions including internships, fellowships, all attorney hiring, training and leadership development programs and elevation to partner.   

For federal contractors and other employers who are considering whether they should continue to regularly monitor their employment practices through selection and workforce analytics in light of other recent executive orders, the EEOC’s letters to these law firms strongly suggest the answer is yes. In other words, wordsmithing your DEI policies and practices is not enough – organizations also need to understand the effect those policies have had on employment decisions and the terms, conditions and privileges of employment to truly evaluate risk. Now, perhaps more than ever, robust workforce analytics should be a key component of every employer’s DEI auditing practices.  

The letters give the law firms until April 15 to respond, though the legal authority for the EEOC’s demands is unclear.  On March 18, several former EEOC officials, including former Chairs Charlotte Burrows and Jenny R. Yang, former Commissioners Chai R. Feldblum and Jocelyn Samuels, former General Counsels Karla Gilbride and P. David Lopez, and former Legal Counsel Pegg R. Mastroianni, publicly released a letter they sent to Acting Chair Lucas, asking her to “withdraw the 20 letters”  because the issuance of the letters “appear to exceed [her] authority under Title VII of the Civil Rights Act of 1964.”  

Berkshire will be watching this development closely, as the agency questions and law firm responses may create a roadmap for challenges to the DEI practices of other private employers.