EEOC Demands DEI Information from 20 Private Law Firms

 In the latest escalation of the Trump administration’s war against private sector DEI initiatives, the Equal Employment Opportunity Commission (EEOC) sent letters to 20 law firms requesting information related to the firms’ DEI practices.

Why it matters: The letters make sweeping requests for information and may be the first step toward full investigations and enforcement actions. While law firms are the target this round, large companies could be next on the list to receive similar requests. 

What’s in the letters? While each letter is tailored to the recipient based on their stated DEI practices, there are several common elements. Each of the letters:

• Identifies publicly available statements, information, actions, and practices (as well as information from court filings) that the recipient firm has made regarding its commitments to advancing DEI.

• Expresses “concern” that such information, actions, or practices “may entail” unlawful discrimination under federal anti-discrimination law (Title VII).

• Requests the firms to submit significant amounts of information related to such actions and practices to the EEOC within a month and preserve all records.

What types of DEI practices are identified? The letters target several types of common DEI practices that they claim may result in unlawful discrimination, including:

• Representation goals. The letters make clear EEOC’s opinion that reported progress on goals creates suspicion that such progress was the result of unlawful discrimination.

• Leadership/talent development/training programs targeting underrepresented groups.

• Affinity groups/employee resource groups.

• Internship/fellowship/scholarship programs.

• Participation in/partnership with third-party DEI groups (particularly those that provide DEI certifications).

• DEI-related compensation incentives.

Sweeping information requests: The letters ask each firm to provide massive amounts of information related to DEI practices.

• Firms are asked to provide all information related to application and selection criteria for certain positions, internships, scholarships, and programs, as well as all communications with third-party recruiters related to the same.

• Firms are also asked to provide information on all individuals who participated in certain internship, scholarship, or leadership programs, along with other participant information.

No evidence of discrimination provided: The letters do not identify any specific action as unlawful, nor provide any concrete evidence of unlawful discrimination. Instead, the letters merely express concern that such practices might be unlawful and request all related information – this type of tactic is frequently used by anti-DEI crusaders such as Robby Starbuck to fish for information.

Do the law firms have to comply? In the words of former EEOC Chair Jenny Yang (D), “there is no basis in the statutes that EEOC enforces for this request…I am not aware of any authority that would require law firms to respond to these letters.” Two other former EEOC Commissioners – both Republican appointees – echoed those sentiments, calling the requests “unprecedented” and that “there is no legal authority here.”  Current Acting Chair Andrea Lucas, signatory to each of the letters, likely has a different opinion.

• The letters do not identify evidence of any unlawful practices nor do they purport to begin any formal investigation. With no legal obligation for the law firms to respond, it’s not clear if they will do so.

• Failure to respond, however, could trigger a formal investigation or other punitive actions from the Trump administration which has not hesitated to single out entities.

Member company considerations:

• It is possible that the EEOC will now turn its attention to large companies and make similar information requests.

• Whether or not the Executive Order on private sector DEI practices holds up in court, the administration has begun taking steps against private employers on DEI practices.