We knew about extraterritoriality, which prohibits bribery of foreign public officials... even by foreign companies if they have a link with the United States. We knew about US economic sanctions against Iran or Russia which apply to non-US companies using dollars or having a presence in the United States, or the extraterritoriality born of the GDPR, which applies to US and other companies on European soil. In the first days of his second term in office, US president Donald Trump added a new form of extraterritoriality: one concerning corporate policies related to diversity and inclusion.

A “certification regarding compliance with applicable federal anti-discrimination law” was sent at the end of March by the Trump administration to certain large EU companies, which must promise that they will comply, according to the Financial Times.

“For our part, we were also informed that Luxembourg law firms had been contacted to sign this document,” said the president of the Luxembourg bar association , contacted by Paperjam, after an article published by d’Lëtzebuerger Land on this subject. “I therefore sent an email to all the lawyers at the bar at the beginning of April to find out how many had been contacted. Only two firms told me they had received the document,” continued Moro, who did not wish to divulge the names of the two entities.

35 firms contacted by the embassy

“For us, a lawyer must remain independent in relation to clients, which means that he cannot allow himself to be influenced by an external entity, be it now an American authority, a European authority or, in general, a client. It’s not up to the client to dictate to the lawyer how he should organise himself, how he should operate because we have a great principle of independence,” insisted Moro.

Contacted by Paperjam, the US embassy in Luxembourg confirmed that it has sent this document “to our current contractors and grantees, totalling approximately 35 recipients at this time.” It added: “US embassies, including US Embassy Luxembourg, are reviewing all contracts and grants to ensure they are consistent with the recent White House executive orders.”

“As part of that review, current contractors and grantees are being asked for the certification required by the president’s executive order on Ending Illegal Discrimination and Restoring Merit-Based Opportunity (EO 14173). This effort relates solely to vendors or other organisations who have or seek to have contracts with, or grants from, our embassies, including US Embassy Luxembourg,” explained Meghan Dean, spokesperson for the US embassy in Luxembourg.

This includes companies under contract

“For a foreign company operating outside the United States, there are generally no US federal anti-discrimination laws that are applicable to them unless they are controlled by a US employer and employ US citizens. There is no ‘verification’ required beyond asking contractors and grantees to self-certify their compliance,” added the spokeswoman, who did not disclose the names of the 35 Luxembourg entities contacted.

So it is not necessarily companies that have a direct link--subsidiary, branch, etc.--with the United States that are targeted, but rather those that have a contract with American embassies.

A&O Shearman, for example, was one of five companies to announce that they had signed agreements with the Trump administration on Friday, April 11, "to avoid these restrictions," explains an article in the Land published on April 18. Contacted by Paperjam, the communications department of A&O Shearman in Luxembourg did not provide further information. An internal communication from the group had, however, leaked to the website law.com on April 11. On this website specializing in the legal field, A&O Shearman's management explained that it had "identified and compared the benefits and risks of all approaches regarding the EEOC [American Equal Employment Opportunity Commission, editor's note] before making a reasoned, but difficult, decision."

“Today we have taken the decision, alongside other leading firms including Kirkland & Ellis, Latham & Watkins and Simpson Thacher, to enter into a collective agreement to permanently end the EEOC’s ongoing investigation into the DEI and ethics of 20 leading law firms, without any admission of liability or wrongdoing on the part of the firm. Throughout this process, our guiding principle has been to best position the firm for long-term success, while remaining true to our commitment to inclusion and our core values, whilst remaining committed to the rule of law.”

Key elements of the agreement and understandings include: “a commitment not to refuse to represent clients who have not traditionally been represented by large law firms because of their political views; a commitment to provide up to $125m in pro bono legal services during the current period and beyond, in broad areas of practice, including ensuring fairness in the justice system, representing veterans, first responders and law enforcement, and combating anti-Semitism, amongst others.”

More than 200 major groups comply

According to CNBC, Amazon in early February removed all references to diversity and inclusion from its latest annual report; the previous one mentioned “inclusion and diversity” in a section called “human capital,” a term that no longer appears in the latest report. The previous report stated, “As we strive to be the best employer on the planet, we focus on investment and innovation, inclusion and diversity, safety and engagement to hire and develop the best talent.”

Also contacted by Paperjam, an Amazon spokesperson in Luxembourg said: “We remain committed to building a diverse and inclusive company that serves our broad range of customers,” explaining that this statement “is related to diversity and inclusion in general, and should not be interpreted as a comment on/ reaction to reported letters from US embassies to local suppliers.”

There are those who change and those who resist

US media outlets report daily on those who are giving up: Bank of America has scrapped diversity-focussed recruitment targets and replaced the term “diversity” with “talent” and “opportunity”; asset manager Blackrock has deleted all references to DEI from its official communications; Deloitte has asked its employees to remove pronouns from their electronic signatures and stopped producing diversity reports; Google has buried its diversity recruitment targets and removed references to cultural events from its calendar.

Going in the opposite direction, Apple has rejected a shareholder request to change its plans, whilst JPMorgan Chase CEPO Jamie Dimon has defended his bank’s DEI efforts, saying they contribute to innovation and better financial results.

This article was originally published in .