Big Law’s Diversity Efforts May Be Illegal, GOP Senator Warns

Senator Tom Cotton, a frequent and vocal critic of progressive ideas, is putting law firms and their clients on notice for their use of Diversity, Equity and Inclusion programs.

In the wake of the US Supreme Court’s decision to overturn affirmative action in higher education institutions, the Republican from Arkansas sent letters Monday to 51 global and national law firms to warn them that their continued use of DEI programs and advice to their clients on these programs could violate federal law and land them in court.

“Congress will increasingly use its oversight powers—and private individuals and organizations will increasingly use the courts—to scrutinize the proliferation of race-based employment practices,” the letter read.

Cotton worked for McKinsey & Co before being elected to Congress in 2012. He now sits on the Senate Judiciary Committee. Last year, Cotton stalled the nominations of nearly a dozen of President Joe Biden’s DOJ nominees over unrelated concerns about Black Lives Matter litigation from the 2020 Portland, Oregon protests.

Firms included in the call-out include Allen & Overy, Greenberg Traurig, and Hogan Lovells. Most of the letter recipients are among the top 50 firms on this year’s AmLaw 100 rankings.

“Following the ruling against affirmative action, investigations into race-based DEI programs are inevitable,” said a Cotton aide. “Senator Cotton sent the letter so that the firms which keep race-based programs will be prepared to answer to Congress.”

Law firms aren’t the only ones who have been warned. Over a dozen Republican Attorneys General from states such as Iowa and South Carolina sent a letter to Fortune 100 CEOs to caution their use of race in their hiring and recruiting.

This isn’t a new move by Cotton. He sent a letter to Target’s CEO about the company’s DEI programs on July 7.

“I urge you to immediately end all of Target’s race-based employment and partnership practices,” the letter read. “If you fail to do so, in the wake of the Supreme Court’s recent decision you should expect
significant and likely costly litigation.”

The senator, along with other Republicans such as Senators Chuck Grassley (R-Iowa), Marco Rubio (R-Fla.), Marsha Blackburn (R-Tenn.), Mike Lee (R-Utah), sent letters in November to same group of law firms warning them of risk arising from their Environmental, Social and Governance practices.