GOP senator informs BigLaw firms how to advise clients on race-based hiring
Republican U.S. Sen. Tom Cotton of Arkansas listens during a confirmation hearing in the Senate Intelligence Committee on July 12. “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,” wrote Cotton in a July 17 letter to 51 BigLaw firms. Photo by Bill Clark/CQ Roll Call via the Associated Press.
Republican U.S. Sen. Tom Cotton of Arkansas has dispatched a letter to 51 BigLaw firms advising them to warn their clients of the risks of “race-based hiring quotas and benchmarks.”
Cotton’s July 17 letter included the same admonition regarding Title VII of the Civil Rights Act that was contained in a letter to Fortune 100 companies by 13 Republican state attorneys general.
Cotton and the Republican attorneys general say Title VII bans employers from discriminating based on race just as Title VI of the Civil Rights Act bans discrimination by recipients of federal funds. The U.S. Supreme Court cited Title VI in June when it struck down race-conscious admissions programs at Harvard University and the University of North Carolina.
“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,” Cotton said in his letter.
“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,” he wrote.
Bloomberg Law has coverage of Cotton’s letter.
Democratic attorneys general for 20 states and the District of Columbia, meanwhile, are sending letters to Fortune 100 companies that disagree with the diversity advice of the Republican attorneys general, according to Politico and a July 19 press release by Illinois Attorney General Kwame Raoul.
“The letter you received from the 13 state attorneys general is intended to intimidate you into rolling back the progress many of you have made,” the July 19 Democratic letter said. “We write to reassure you that corporate efforts to recruit diverse workforces and create inclusive work environments are legal and reduce corporate risk for claims of discrimination. In fact, businesses should double-down on diversity-focused programs because there is still much more work to be done.”
The letter said no company should hire an employee solely based on race. But private employers have many tools to diversify their workforces, the letter added. They include adjusting recruiting practices, developing better retention and promotion strategies, and furthering leadership development and accountability.
