Agency vows to target ‘unlawful coordination on DEI metrics’
The Federal Trade Commission is warning top law firms that their participation in a DEI program that sets hiring standards for the legal industry may violate antitrust laws.
FTC chairman Andrew Ferguson sent letters Friday to 42 firms, including Kirkland & Ellis and Covington & Burling, warning them that the Mansfield Certification program, which “writes the unwritten rules” for diversity hiring practices, appears to promote unlawful collusion among competing firms.
“I remind you that the FTC remains focused on protecting American workers from unfair and anticompetitive employer labor practices,” Ferguson wrote. “This includes ‘[c]ollusion or unlawful coordination on DEI metrics.’”
To gain certification in the Mansfield program, law firms pledge to consider talent pools for promotions and leadership roles in which “at least 30%” of the candidates come from “underrepresented” groups. The program also hosts “monthly knowledge sharing calls” where competing firms “share their innovative ideas for overcoming … common challenges” to workplace diversity, according to a Legal 500 article by program participants, which noted that firms are “all competing for a shrinking talent pool.”
Ferguson cited those statements to argue that the Mansfield Program, which describes itself as an “inclusive sourcing process,” may distort competition for legal talent and reduce pay for attorneys.
“The effects of such DEI coordination can infect all aspects of law firm hiring,” Ferguson wrote. “[F]or example, the goal of reaching agreed-upon DEI quotas can determine firms’ decisions not only about who makes partner, but also the makeup of incoming classes of associates (and even summer associates) and the assignments junior attorneys are given.”
The Trump administration has already targeted top law firms under Title VII of the Civil Rights Act, arguing that the firms’ diversity programs—many of which excluded white men until last year—constitute unlawful discrimination. Ferguson’s letter illustrates an additional tool in the administration’s legal arsenal: Even if firms find work-arounds that allow for continued diversity hiring, the coordinated adoption of those measures could count as anti-trust violations if they distort labor markets.
“These DEI practices are not only reprehensible, they’re potentially unlawful,” FTC spokesman Joe Simonson told the Washington Free Beacon. “The Trump-Vance FTC won’t look the other way.”
The Mansfield program is an initiative of the for-profit consulting firm Diversity Lab, founded in 2013 by Caren Ulrich Stacy. Stacy piloted the Mansfield program in 2017, naming it after Arabella Mansfield, the first female lawyer in the United States, and modeled it after the National Football League’s Rooney Rule, which requires teams to interview at least two minority candidates for head coach and general manager vacancies.
The program claims to avoid the legal pitfalls of other DEI initiatives. Diversity Lab states that Mansfield is “fully aligned with anti-discrimination laws” because it only sets diversity targets for the candidates under consideration, not for the attorneys who are actually promoted.
Many firms have nonetheless framed the program as part and parcel of their other DEI initiatives. Covington & Burling, for example, where former attorney general Eric Holder runs a “racial equity audit” practice, boasted in 2023 that it had “once again” achieved the “Mansfield Certified Plus designation”—meaning that attorneys from underrepresented groups were not only 30 percent of the firm’s talent pool, but of its actual leadership as well.
“DEI initiatives continue to be a key priority at Covington and achieving Mansfield Rule certification year after year is a reflection of our commitment,” Covington chair Doug Gibson said in a press release. “The Management Committee, along with our DEI team, DEI Committee, and Affinity Group Leaders, are continuously monitoring our progress and further enhancing our programs and policies to foster an inclusive and equitable workplace.”
To sell its certification program, Diversity Lab offers “client forums,” in which Mansfield-certified firms network and “connect with and learn from influential legal departments at Fortune 1000 companies.” The consultancy claims that the forums generated $3-5 million “in new or expanded work” for attorneys who attended last year.
Diversity Lab did not respond to a request for comment.
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