Under normal circumstances, there are good reasons why the government keeps a lid on investigation materials that don’t pan out. Accusations are not findings, and we don’t want to brand someone based on an ultimately fruitless inquiry. After all, casting someone as breaking the law could impose a harm that later exoneration never fully repairs. In the discrimination context, Title VII takes premature accusations so seriously that EEOC employees face up to a year in prison for publicizing a charge before a formal lawsuit.
These are not normal circumstances.
Anyway… in March 2025, EEOC chief Andrea Lucas sent letters to 20 Biglaw firms asking for years of applicant data and issued a press release naming every one of them next to the words “unlawful” and “Title VII.” Was there a formal lawsuit? No. Was there ever a charge? That’s what the government doesn’t want to say. But the agency did set up and publicize a tip line hoping to gather evidence from snitches to belatedly build a claim against the firms. A month later, the EEOC put out a second release bragging that it convinced four firms to “disavow DEI” — whatever that means — without much further detail.
By way of context, all of this happened during the same stretch where the White House fired off executive orders against firms it didn’t like and started collecting tribute from the most cowardly.
But the EEOC accusations just sort of faded into the ether. In February, the EEOC conceded in a court filing that answering those letters that the agency went out of its way to plaster across the media had really been voluntary and part of a super preliminary inquiry all along! The EEOC declared the matter closed.
Public Citizen and some law professors decided that the public deserved to see the EEOC’s files on this one. On Monday, Jeanine Pirro’s U.S. Attorney’s Office — wait, Pirro still has a job?!? — told Judge Beryl Howell that it cannot disclose a swath of important documents and would very much like everyone to just forget about the government publicly blasting major law firms for breaking the law and setting up snitch lines without ever putting together a lawsuit.
You know, to protect the firms.
The motion invokes eight separate FOIA exemptions, and some of them it will only explain in a secret filing the plaintiffs don’t get to read. But the headline argument is that the government must protect the reputations of the firms involved:
The Supreme Court has likewise recognized that these provisions exist in significant part to protect respondents from the reputational harm of a publicly known but unadjudicated accusation of discrimination.
The firms that it already publicly accused of breaking the law.
“One of the purposes behind the non-disclosure provisions is to protect the employer/respondent who has an interest in maintaining the confidentiality of its records,” writes the government — citing the same statute that should’ve barred the EEOC’s March publicity stunt. Normally, a public accusation implies some sort of evidence, but since this specific intimidation campaign was based on nothing, I guess the government doesn’t see the March letters as running afoul of this restriction.
But once the EEOC started actually gathering information — even if that information proved the allegations frivolous — it became protected from disclosure. Lest it inappropriately cast aspersions on the firms involved… that the EEOC already publicly named.
To announce that a charge is pending against a named employer is therefore to make public the most consequential component of the charge.
True. But the reputational damage this rule exists to prevent was already done, on purpose, by the people now invoking it to shield themselves from scrutiny. And what reputational damage is there in disclosing exculpatory evidence? Well…
Defendant must not disclose information that would necessarily allow observers to determine whether a charge exists. Thus, it is improper for Defendant to reveal information that would show that an entity does not have a charge against it.
That’s some catch, that Catch-22.
The EEOC can’t let anyone know if there’s a charge — even though at this point they’ve admitted in court that it considers the business of the March letters to be closed — because that would harm the firm charged. And it can’t say a firm was not charged, because its silence about the others would reveal that they might be charged. So everyone stays under suspicion indefinitely, for their own good!
Finally, an analogy to the Glomar doctrine can also be drawn.
Shut up! No, you are not serious.
The Glomar doctrine is a national security protection carved out to allow the CIA to neither-confirm-nor-deny that it set out to steal a sunken Soviet submarine. It is not the level of secrecy governing whether Cooley ever received a letter with a case number stamped on it. This would swallow FOIA whole to allow government agencies to say “we can’t give you non-exempted material because it might lead you to surmise the existence of exempted material.”
For their part, the firms that responded to the EEOC inquiry actually did request confidentiality, positing that their hiring criteria amount to trade secrets, and that disclosure would cost them “certain competitive advantages against peer firms in recruiting.” It would indeed be a shame if a rival learned that Biglaw likes good grades from fancy schools.
Beyond the canard that the government is hoping to protect the firms it blasted, there’s an additional nugget that the administration doesn’t want seeing the light of day:
Here, Defendant withheld emails to and from senior White House advisers with broad and significant responsibility for formulating advice to the president.
There we go! No one really believed this was a good faith independent legal inquiry, but now we have a smoking wet noodle behind this dud of an investigation. In asserting the presidential communications privilege, the brief points squarely at Stephen Miller’s office. And, for good measure, the brief cites communications with the “General Counsel for the Department of Government Efficiency,” which is a curious addition to the group chat about private employer discrimination investigations until you remember that DOGE was a fake entity built around the personal pet peeves of a South African guy running a racial slur board.
The brief contends that the presidential communications privilege covers “communications that Chair Lucas sent to herself.” Sure, why not?
Further, Defendant withheld predecisional communications between itself and Department of Justice coordinating on litigation strategy and predecisional communications between itself and the Executive Office of the President “regarding how to address unlawful DEI-related employment practices.” … The respective final decisions were a March 17, 2025, letter to law firms; press releases; and responses to media comments for request. See id. The documents withheld were predecisional because they preceded each respective decision and were deliberative because they all contained back and forth about the final decision.
Yeah, predecisional communications stay private because we assume the government then acts with discretion. Not that it’s going to decide to plaster unfounded allegations all over the media.
It’s just tough to claim an investigation amounts to arm’s length law enforcement and also that its paperwork is the President’s privileged deliberation. But coherence isn’t really the point as much as it’s all about making sure that nobody gets to see how a federal civil rights agency ended up running a shakedown operation.
That’s why it’s so important that at least some of these documents reach the public. Confidentiality is supposed to protect the accused, but if it becomes a shield to allow the government to use enforcement leverage to launch extortion campaigns without fear of scrutiny, that’s putting the accused — and all those who might be accused in the future — at risk.
Which is, of course, the plan.
Earlier: Trump Sics EEOC On 20 Biglaw Firms
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news.
The post EEOC Wants To Keep Biglaw Diversity Probe Docs Secret To ‘Protect’ Firms It Publicly Accused appeared first on Above the Law.
Under normal circumstances, there are good reasons why the government keeps a lid on investigation materials that don’t pan out. Accusations are not findings, and we don’t want to brand someone based on an ultimately fruitless inquiry. After all, casting someone as breaking the law could impose a harm that later exoneration never fully repairs. In the discrimination context, Title VII takes premature accusations so seriously that EEOC employees face up to a year in prison for publicizing a charge before a formal lawsuit.
These are not normal circumstances.
Anyway… in March 2025, EEOC chief Andrea Lucas sent letters to 20 Biglaw firms asking for years of applicant data and issued a press release naming every one of them next to the words “unlawful” and “Title VII.” Was there a formal lawsuit? No. Was there ever a charge? That’s what the government doesn’t want to say. But the agency did set up and publicize a tip line hoping to gather evidence from snitches to belatedly build a claim against the firms. A month later, the EEOC put out a second release bragging that it convinced four firms to “disavow DEI” — whatever that means — without much further detail.
By way of context, all of this happened during the same stretch where the White House fired off executive orders against firms it didn’t like and started collecting tribute from the most cowardly.
But the EEOC accusations just sort of faded into the ether. In February, the EEOC conceded in a court filing that answering those letters that the agency went out of its way to plaster across the media had really been voluntary and part of a super preliminary inquiry all along! The EEOC declared the matter closed.
Public Citizen and some law professors decided that the public deserved to see the EEOC’s files on this one. On Monday, Jeanine Pirro’s U.S. Attorney’s Office — wait, Pirro still has a job?!? — told Judge Beryl Howell that it cannot disclose a swath of important documents and would very much like everyone to just forget about the government publicly blasting major law firms for breaking the law and setting up snitch lines without ever putting together a lawsuit.
You know, to protect the firms.
The motion invokes eight separate FOIA exemptions, and some of them it will only explain in a secret filing the plaintiffs don’t get to read. But the headline argument is that the government must protect the reputations of the firms involved:
The Supreme Court has likewise recognized that these provisions exist in significant part to protect respondents from the reputational harm of a publicly known but unadjudicated accusation of discrimination.
The firms that it already publicly accused of breaking the law.
“One of the purposes behind the non-disclosure provisions is to protect the employer/respondent who has an interest in maintaining the confidentiality of its records,” writes the government — citing the same statute that should’ve barred the EEOC’s March publicity stunt. Normally, a public accusation implies some sort of evidence, but since this specific intimidation campaign was based on nothing, I guess the government doesn’t see the March letters as running afoul of this restriction.
But once the EEOC started actually gathering information — even if that information proved the allegations frivolous — it became protected from disclosure. Lest it inappropriately cast aspersions on the firms involved… that the EEOC already publicly named.
To announce that a charge is pending against a named employer is therefore to make public the most consequential component of the charge.
True. But the reputational damage this rule exists to prevent was already done, on purpose, by the people now invoking it to shield themselves from scrutiny. And what reputational damage is there in disclosing exculpatory evidence? Well…
Defendant must not disclose information that would necessarily allow observers to determine whether a charge exists. Thus, it is improper for Defendant to reveal information that would show that an entity does not have a charge against it.
That’s some catch, that Catch-22.
The EEOC can’t let anyone know if there’s a charge — even though at this point they’ve admitted in court that it considers the business of the March letters to be closed — because that would harm the firm charged. And it can’t say a firm was not charged, because its silence about the others would reveal that they might be charged. So everyone stays under suspicion indefinitely, for their own good!
Finally, an analogy to the Glomar doctrine can also be drawn.
Shut up! No, you are not serious.
The Glomar doctrine is a national security protection carved out to allow the CIA to neither-confirm-nor-deny that it set out to steal a sunken Soviet submarine. It is not the level of secrecy governing whether Cooley ever received a letter with a case number stamped on it. This would swallow FOIA whole to allow government agencies to say “we can’t give you non-exempted material because it might lead you to surmise the existence of exempted material.”
For their part, the firms that responded to the EEOC inquiry actually did request confidentiality, positing that their hiring criteria amount to trade secrets, and that disclosure would cost them “certain competitive advantages against peer firms in recruiting.” It would indeed be a shame if a rival learned that Biglaw likes good grades from fancy schools.
Beyond the canard that the government is hoping to protect the firms it blasted, there’s an additional nugget that the administration doesn’t want seeing the light of day:
Here, Defendant withheld emails to and from senior White House advisers with broad and significant responsibility for formulating advice to the president.
There we go! No one really believed this was a good faith independent legal inquiry, but now we have a smoking wet noodle behind this dud of an investigation. In asserting the presidential communications privilege, the brief points squarely at Stephen Miller’s office. And, for good measure, the brief cites communications with the “General Counsel for the Department of Government Efficiency,” which is a curious addition to the group chat about private employer discrimination investigations until you remember that DOGE was a fake entity built around the personal pet peeves of a South African guy running a racial slur board.
The brief contends that the presidential communications privilege covers “communications that Chair Lucas sent to herself.” Sure, why not?
Further, Defendant withheld predecisional communications between itself and Department of Justice coordinating on litigation strategy and predecisional communications between itself and the Executive Office of the President “regarding how to address unlawful DEI-related employment practices.” … The respective final decisions were a March 17, 2025, letter to law firms; press releases; and responses to media comments for request. See id. The documents withheld were predecisional because they preceded each respective decision and were deliberative because they all contained back and forth about the final decision.
Yeah, predecisional communications stay private because we assume the government then acts with discretion. Not that it’s going to decide to plaster unfounded allegations all over the media.
It’s just tough to claim an investigation amounts to arm’s length law enforcement and also that its paperwork is the President’s privileged deliberation. But coherence isn’t really the point as much as it’s all about making sure that nobody gets to see how a federal civil rights agency ended up running a shakedown operation.
That’s why it’s so important that at least some of these documents reach the public. Confidentiality is supposed to protect the accused, but if it becomes a shield to allow the government to use enforcement leverage to launch extortion campaigns without fear of scrutiny, that’s putting the accused — and all those who might be accused in the future — at risk.
Which is, of course, the plan.
Earlier: Trump Sics EEOC On 20 Biglaw Firms
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news.
The post EEOC Wants To Keep Biglaw Diversity Probe Docs Secret To ‘Protect’ Firms It Publicly Accused appeared first on Above the Law.
