GOP states fire warning shot to dozens of law firms with diversity, equity initiatives

FIRST ON FOX: A group of Republican states sent a letter Tuesday to 100 high-profile law firms nationwide, warning them against pursuing diversity, equity and inclusion (DEI) initiatives.

The letter — signed by six GOP attorney general led by Austin Knudsen of Montana — reminded the law firms of their “obligations as an employer under federal and state law” to refrain from discriminatory practices. The top law enforcement officials added any differential treatment based on race is unlawful, divisive and exposes the firms to legal consequences the states could pursue.

“As Attorneys General, it is incumbent upon us to remind all entities operating within our respective jurisdictions of the binding nature of American anti-discrimination laws,” Knudsen and the other attorneys general wrote in the letter. “If your law firm previously resorted to racial preferences or naked quotas, that path is now definitively closed.”

“Employers, to include large law firms, are legally obligated to treat all employees, all applicants, and all contractors equally, without regard to an individual’s race or skin color,” they continued. “We advise you to immediately terminate any unlawful race-based quotas or preferences that your firm has adopted for its employment and contracting practices.”

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The attorneys general added that if law firms continued with discriminatory hiring practices, they would be held accountable “sooner rather than later.”

The letter cited a recent Bloomberg Law report which determined that major U.S. law firms have DEI initiatives in their hiring process. According to the report, 79% of law firms require diversity within a pool of candidates for management and leadership roles, 57% tie partner compensation to diversity efforts, 48% affirm they have clear DEI goals and 31% have action plans to increase diversity among leadership.

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“These programs were already questionable before the Supreme Court’s decision in SFFA; now, they are unambiguously in tension with employer legal duties under state and federal law,” the letter added. “Yet despite employing race-based policies and programs, some law firms have opted to flout the law, and indicated they were preparing to continue their efforts regardless of the Supreme Court’s ruling in SFFA.”

In late June, the Supreme Court ruled in a 6-3 decision in Students for Fair Admissions (SFFA) v. Harvard College that race cannot be used as a factor in college admissions. The ruling determined that Harvard’s program factoring in race in determining applicant quality violated the 14th Amendment’s Equal Protection Clause.

The attorneys general argued such a standard extends to hiring practices at businesses and law firms.

“Such overt and pervasive racial discrimination in the employment and contracting practices of some AM Law 100 firms compels us to remind you of the obvious: Racial discrimination is illegal, divisive, and inconsistent with progress toward colorblindness,” they wrote to the firms Tuesday. 

“Race-based employment and contracting violate both state and federal law, and as the chief law enforcement officers of our respective states, we are committed to vigorously enforcing the law.”

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In an op-ed published following the June Supreme Court ruling, Andrea Lucas, a member of the U.S. Equal Employment Opportunity Commission, argued that, although companies “remain under heavy pressure to take race-conscious employment actions,” such programs are illegal.

“Prior to today’s ruling, the Court permitted universities to use race as a factor in admissions, based on their interest in promoting ‘diversity,’” she stated. “Not so in the employment context. The Court never has blessed employers taking race-conscious employment actions based on interests in workforce diversity.”

“Now is a good time for employers to review their compliance with existing limitations on race- and sex-conscious diversity initiatives,” Lucas continued.

According to Lucas, everything from a company’s race-restricted access to mentoring to offering more compensation to “diverse” summer interns may be implicated.

In addition to Knudsen, Attorneys General Brenna Bird of Iowa, Tim Griffin of Arkansas, Kris Kobach of Kansas, Daniel Cameron of Kentucky and Todd Rokita of Indiana also signed onto the formal notice sent to the law firms.