One of the primary weapons the Trump administration has deployed against major law firms has been the threat of an investigation by the Equal Employment Opportunity Commission.
Now, congressional Democrats are asking whether the EEOC’s acting chair illegally helped coerce firms into providing nearly $1 billion in pro bono legal services for causes approved by the president.
In a July 9 letter, the ranking members of the House Judiciary Committee, the Senate Permanent Subcommittee on Investigations, and the House Education & Workforce Committee pressed Andrea Lucas, the EEOC’s acting chair, to turn over documents and information about her role in launching what the letter described as “sham EEOC investigations” of the firms.
“Public reporting suggests—and information we have received as part of our ongoing investigation corroborates—that you used your position as acting chair of the EEOC to facilitate a shakedown of prominent law firms that represented causes or employed individuals whom the President dislikes,” said the letter, which was signed by Reps. Jamie Raskin (D-Md.) and Bobby Scott (D-Va.) and Sen. Richard Blumenthal (D-Conn.).
Letters From Lucas
The letter comes as Lucas, an ardent opponent of diversity, equity and inclusion efforts, is seeking Senate confirmation for another term on the EEOC. Lucas was named by Trump to a five-year term in 2020 and tapped as acting chair of the commission when he returned to the White House earlier this year.
Civil rights groups have opposed her reappointment and have specifically cited her efforts to force law firms to abandon their DEI programs under the threat of potential EEOC investigations. A June letter signed by dozens of civil rights groups accused Lucas of using the EEOC “to intimidate businesses and sow confusion around the legality of diversity, equity, inclusion and accessibility practices.”
In March, Lucas publicly announced that she had sent letters to 20 Am Law 100 firms requesting information about their DEI-related employment practices. The goal, the agency said, was to determine whether the programs “discriminated against white or male employees, applicants and training program participants.”
“The EEOC is prepared to root out discrimination anywhere it may rear its head, including in our nation’s elite law firms,” Lucas said in a press release. “No one is above the law—and certainly not the private bar.”
Lucas’s letters to firms followed on the heels of an executive order signed by President Trump that directed the EEOC to review Big Law’s DEI practices. The agency, the order said, should determine whether elite law firms “reserve certain 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.”
Scrapping DEI Programs
Trump, in February, began an assault on major law firms that had worked for clients who had opposed him and administration allies. In a series of executive orders, he blacklisted several large firms, essentially cutting off their access to the federal government. He suspended lawyers’ security clearances, blocked access to government buildings, prevented government hiring firm employees and required federal agencies to terminate contracts with the firms.
In the wake of the executive orders and Lucas’s letters, nine of the nation’s largest firms bowed to the pressure. They made deals with Trump to retool or scrap DEI initiatives, hire lawyers from across the political spectrum, and offer financial concessions to fund pro-administration legal causes. The firms include: Paul, Weiss, Rifkind, Wharton & Garrison; Skadden Arps Slate Meagher & Flom; Willkie Farr & Gallagher; Cadwalader, Wickersham & Taft; Milbank; Kirkland & Ellis; Allen Avery Shearman & Sterling; Latham & Watkins; and Simpson Thacher & Bartlett.
In April, Bloomberg News reported that Skadden had canceled all future events for the firm’s employee affinity groups and had removed mentions of those groups from its website. Previously, the firm supported at least 10 affinity networks “for parents, veterans, Asian-Pacific Islanders, Blacks, and Latinos, among others,” Bloomberg said.
As part of its deal, Skadden also said it would spend $100 million on pro bono causes that the administration supports. Willkie Farr, Cadwalader and Milbank have also committed $100 million; Paul, Weiss has pledged $40 million; and Kirkland, A&O Shearman, Latham and Simpson Thacher promised $125 million each. All told, the firms committed $940 million to Trump-backed pro bono efforts.
Trump celebrated the agreements, saying in a Truth Social post that they will “help end the weaponization of the justice system and the legal profession.” The firms have been far less exuberant, acknowledging in internal communications that the agreements were designed to prevent Trump from targeting them with business-crushing executive orders.
Timing Questioned
Not long after Trump’s announcement, the EEOC also touted a series of “settlement agreements” with several of the firms it had targeted. The agency said, “the firms chose to voluntarily resolve matters with the EEOC, without admission of liability, to avoid an extended dispute.”
The phrasing has raised ire among Lucas’s critics. In their June 25 letter to the Senate committee considering Lucas’s renomination, civil rights groups—led by the National Women’s Law Center Action Fund, the National Employment Law Project, the National Partnership for Women and Families and The Leadership Conference on Civil and Human Rights—objected to calling the deals “settlements.” Lucas’s letters were not formal charges, they argued, therefore “there was nothing to ‘settle.’”
They also questioned the timing of the deals, noting their proximity to Trump’s announcement. “This sequence of events, and her seeming misuse of power, raises serious concerns about Lucas’ willingness to weaponize the EEOC to score political points,” the groups wrote.
The EEOC, Lucas’s critics argue, is an independent agency designed by Congress to be insulated from the political whims of a particular president. Trump has already tested that notion by firing two EEOC commissioners, both Democratic appointees, as well as the agency’s general counsel. The moves, described by employment lawyers as unprecedented, appear to contradict Title VII of the Civil Rights Act of 1964, which created the EEOC and set fixed, five-year terms for commissioners.
Republicans will have a majority on the commission provided they confirm new members. Until then, the body lacks a quorum—which means the EEOC is unable to act on its statutory responsibilities. The lack of a quorum is another problem, critics say. Because the EEOC is, essentially, in limbo, Lucas has no authority to force anyone to do anything, they argue.
Confidentiality Concerns
Raskin, Scott and Blumenthal, in their letter to Lucas, also allege that her decision to send and publicize letters to firms appeared to violate EEOC rules and federal law. Under Title VII of the Civil Rights Act, when the EEOC asserts that an employer has discriminated, the matter must be kept confidential. Violating confidentiality could result in criminal penalties, including fines and jail time.
The requirements, the Democrats asserted, are designed to prevent the agency from damaging an employer’s reputation until evidence of wrongdoing has been found. “Yet that appears to be exactly what you did at the request of the President,” the letter to Lucas states. “You sent letters of inquiry expressing your ‘concern’ and immediately released them to the public with great fanfare.”
In the month after Lucas sent her letters, the Democrats noted, nine firms made deals, and “President Trump has admitted that the EEOC investigation was part of his shakedown of these law firms.”
Blumenthal and Raskin in April asked the firms for more information about how and why they cut deals. And in their letter to Lucas, they said firms have expressed fear about fallout for their clients and the agency’s requests for detailed personal information regarding employees and job applicants, as well as extensive information about their clients.
“As part of this sham investigation, you sent invasive and unusual demands for highly sensitive records and data, alarming the firms and ultimately forcing them to conclude that an agreement with the administration was the best course of action,” the Democrats wrote.
The Battle Continues
The Democrats are demanding information from Lucas no later than 5 p.m. on July 25. Even if Lucas complies, the battle is unlikely to end there for her or the law firms.
On May 12, for instance, the anti-DEI group Americans for Equal Opportunity filed a discrimination complaint against 44 large law firms over a program that provides paid summer internships to minority students before their first year of law school. The complaint, Bloomberg noted, “may be a test case” for EEOC enforcement actions around DEI programs.
And the Democrats’ letter is unlikely to move Senate Republicans to oppose Lucas’s renomination. At a recent hearing, they praised her leadership of the EEOC, and Sen. Bill Cassidy, who chairs the Senate Committee on Health, Education, Labor and Pensions Committee, said Lucas “has a strong record of protecting workers from discrimination and ensuring the EEOC follows the law as Congress wrote the law.”
In court, four law firms that refused to make deals have fought back and won permanent injunctions preventing the administration from enforcing Trump’s executive orders. While those victories have provided a measure of legal solace for law firm leaders concerned about landing in the administration’s crosshairs, they have done little to bolster large firms’ once-robust DEI programs. Even while the administration has lost in court, Trump’s actions have convinced dozens of Am Law 200 firms—most of them not targeted by executive orders or agency letters—to alter their diversity policies or remove pro-DEI statements from their websites.
--
David L. Brownis a legal affairs writer and consultant, who has served as head of editorial at ALM Media, editor-in-chief of The National Law Journal and Legal Times and executive editor of The American Lawyer. He consults on thought leadership strategy, creates in-depth content for legal industry clients, and works closely with Best Law Firms, as senior content consultant.
