Is Cotton overreaching?

Central Arkansas Press, Scott Green

Republican Tom Cotton, United States Arkansas junior senator since 2015

Typically, big law firms specialize in sending threatening letters. But since the U.S. Supreme Court upended a string of precedents in its recent term, perhaps should be no surprise that law firms these days are receiving them.

In letters to 51 major law firms earlier this month, U.S. Sen. Tom Cotton warned that they and their clients who maintain diversity, equity and inclusion (DEI) initiatives are courting trouble.

Cotton, a Republican from Arkansas, informed some of the world’s highest-powered lawyers that Supreme Court conservatives had voted to end race-conscious admissions policies at U.S. colleges and universities — just in case they missed that much-publicized decision. The ever-helpful Cotton, who has very little experience in private practice, despite graduating from Harvard Law School, further advised the firms about how they should, "manage their clients in the aftermath of the June ruling."

“Your firm has a duty to fully inform clients of the risks they incur by making employment decisions based on race,” Cotton wrote. “To the extent that your firm continues to advise clients regarding DEI programs or operate one of your own, both you and those clients should take care to preserve relevant documents in anticipation of investigations and litigation.” Three years after the police murder of George Floyd in Minneapolis prompted private employers to expand their diversity programs, how the tables have turned.

You can tell the status quo is alive and well when a senator from a former Confederate state feels emboldened to threaten law firms that themselves have mostly failed to advance attorneys of diverse backgrounds into higher-level jobs. Black attorneys, for instance, represent just 2.5% of all law firm partners, according to the Minority Corporate Counsel Association. Other surveys put the number closer to 2%.

Some of Cotton’s letters were addressed to diverse partners associated with the firms’ DEI programs. It’s easy to imagine an intern in Cotton’s office going through law firm directories to ensure that these hostile missives were targeting those lawyers.

In a sign of the times, the letters arrived a week after GOP Sen. Tommy Tuberville of Alabama doubled down on his defense of White nationalism, arguing with a TV host who said a White nationalist is a racist, by definition. “Well, that’s your opinion,” the former football coach-turned-politician shot back, saying he thinks of them simply as his fellow Americans. He eventually tried to backtrack after criticism from other Republicans.

Cotton’s letters also arrived as attorneys general from 13 GOP-dominated states threatened the CEOs of Fortune 100 companies with “serious legal consequences” over race-based employment and diversity policies. Illinois’ Kwame Raoul and 20 other attorneys general from Democrat-run states sent a counter-letter supporting DEI initiatives. Companies seemingly can’t avoid getting caught in the middle of today’s divisive culture wars.

So if a private employer takes steps to diversify its workforce, is that really grounds for high-ranking public officials to investigate and sue? Based on the employment law advice that some law firms have published in recent weeks to aid their clients, the answer is “maybe.” At Gibson, Dunn & Crutcher, for example, where Cotton sent his letter to partner and Chief Diversity Officer Zakiyyah Salim-Williams, the firm wrote that the Supreme Court decision on college admissions does not change existing law governing employers’ use of race in employment matters.

The Equal Employment Opportunity Commission (EEOC) echoed that conclusion, saying federal employment law regarding nondiscrimination by race has long been more restrictive than the law governing higher education that the Supreme Court directly addressed. “It remains lawful for employers to implement diversity, equity, inclusion and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.” But the high court’s ruling does have “important strategic and atmospheric consequences for employers’ diversity efforts,” Gibson, Dunn & Crutcher concluded. Companies should prepare for additional litigation, not only from public officials but also plaintiffs’ firms and conservative public-interest groups likely to bring reverse-discrimination claims against those with high-profile diversity programs.

Employers also should prepare for greater resistance from inside their companies, among those who feel empowered to contest publicly stated corporate values and commitments. We believe that, just as with college admissions, employers can stay within the law, offer equal opportunity to everyone and still deploy the tools they need to improve the diversity of their staffers. The Supreme Court decision doesn’t prohibit colleges and universities from evaluating individual applicants in greater depth, with the goal of achieving the best class possible. As Chief Justice John Roberts noted, “Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise.” The same opportunity exists for employers, at least those who focus on individual applicants and employees, not crude racial groupings, and who have the stomach to stick with their principles despite the intimidation tactics of the country’s Cottons.

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