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Are DEI Positions and Policies at Law Firms on Risky Legal Ground?

By Joseph Fawbush, Esq. | Last updated on

Many businesses have made diversity, equity, and inclusion (DEI) a priority. Law firms are no exception. Yet law firms, particularly national firms, have recently come under fire for the diversity efforts they've undertaken in the last several years. Nor is the legal field unique in this regard. Starbucks, Amazon, and Target have also been sued in federal court over some of their policies, although a federal judge in Washington recently dismissed one of those suits as frivolous. But both corporate America and big law firms are bracing for potential litigation ahead. Law firms could potentially see risk for both the diversity policies they have and the advice they give to clients.

Diversity Programs Targeted

Conservative advocacy groups such as the American Alliance for Equal Rights (AAER) and the America First Legal Center have called for more lawsuits against private companies alleging reverse discrimination. This includes law firms. Senator Tom Cotton of Arkansas warned 51 law firms in July that their DEI initiatives might violate the law. AAER was founded by Edward Blum. Former Trump White House aide Stephen Miller founded America First Legal Center in 2021.

On August 22, AAER sued Perkins Coie, LLP and Morrison and Foerster, two global law firms, over their diversity fellowships. In its complaint against Perkins Coie, AAER alleges that an unnamed straight, white, heterosexual male who is interested in pursuing DEI after graduating from law school is harmed by the firm's fellowship policy. Both Perkins Coie and Morrison and Foerster have been recognized and awarded for their diversity initiatives.

In the lawsuit against Perkins Coie, AAER alleges the firm violated 42 U.S.C. § 1981, a post-Civil War era federal law that allows all persons "to make and enforce contracts . . . to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens." AAER argues that Perkins Coie, in creating fellowships for law students of color and LGBTQ+ students, is violating that law by making contracts based on race. AAER is seeking to have the court declare Perkins Coie's diversity fellowships illegal and force them to end the program. AAER also seeks $1 in nominal damages.

In Students for Fair Admissions v. Harvardthe U.S. Supreme Court held that race-conscious admissions processes in college admissions violate the Equal Protection clause of the Fourteenth Amendment. While the decision did not impact any private employer directly, it nonetheless created some uncertainty around the legality of DEI initiatives.

Further fueling speculation, in a concurring opinion Justice Neil Gorsuch wrote specifically to emphasize that Title VII of the Civil Rights Act prohibits all forms of racial discrimination, as well, which has been seen by some as an invitation to future legal challenges under Title VII. However, as a concurring opinion, it does not have the force of law. Corporations and law firms are left to speculate about what the Supreme Court may do with future cases alleging reverse discrimination under Title VII.

Eliminating Bias Has Not Been Declared Illegal

If your law firm (or business) has a diversity, equity, and inclusion program, should you be worried? Well, it depends. Regardless of SCOTUS' June decision, race-based hiring practices have always been illegal under Title VII. Reserving employment spots for any one race or ethnicity is against federal law. So, too, are any company policies that create a disparate impact based on race. It is not clear that SCOTUS' decision to end affirmative action should have any impact on how courts interpret Title VII.

Nothing in Students for Fair Admissions or Title VII prohibits companies from seeking to reduce bias in their hiring practices. As before, employers should be careful that they are considering the best candidates regardless of race, ethnicity, or any other protected class.

Law Firms Already Having Trouble With DEI Positions

There may be one other concern in the legal industry. Added legal uncertainty might make law firms have even more trouble creating and implementing DEI policies. According to Bloomberg Law, while 80% of national law firms have a DEI executive position, those positions and initiatives have been hard to sustain. Vague duties and a perception that these roles can be ineffective have made them hard to fill.

Uncertain legal footing, targeted attacks, and a difficulty retaining executive talent in DEI positions means that DEI policies at law firms are in a more precarious position than they have been in years.

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