In response to a recent federal executive actions targeting private-sector DEI and DEIA policies, a coalition of 16 Democratic state attorneys general issued guidance on Feb. 13 affirming the legality and viability of such programs.
The group’s main message to concerned employers is that the federal government lacks the legal authority to prohibit diversity, equity, inclusion and accessibility (DEI and DEIA) programs at private organizations through executive action, including those receiving federal contracts or grants. The group also cited state and federal constitutional protections “to speak freely—in their policies, training, and daily interactions—about lawful best practices for growing and supporting private and public sector workforces.”
(Click here to read our prior alert on the Department of Justice memo related to investigating DEI and here for our prior alert on the executive order repealing affirmative action requirements for federal contractors.)
While discrimination is illegal, the group claims the DEIA executive order and Department of Justice memo conflates unlawful and discriminatory hiring and retention preferences with lawful practices. The guidance parses through the differences and also outlines the legality and viability of DEIA programs at large. Beyond that, the guidance claims well executed DEIA programs prevent workplace discrimination as opposed to fostering it.
Within the 16 states that signed onto the guidance—Arizona, California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada New Jersey, New York, Oregon, Rhode Island and Vermont—more than 285,000 discrimination complaints were filed with the EEOC over the last five years. Like the federal protections in Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA), most state laws prohibit employers from intentional discrimination against employees, apparently non-discriminatory actions that adversely impact protected groups, or exposing employees to a hostile work environment.
Discrimination laws at the state and federal level include race, sex, religion, national origin and disability as protected characteristics, while some states like California offer an expansive set of protections to include marital status or gender identity. Most state laws also impose liability on employers for discriminatory conduct from their employees, as well. The AG coalition asserts that properly designed and implemented DEIA programs can help prevent unlawful discrimination, and a lack of adequate nondiscrimination or fair employment practices could be a factor considered by courts and prosecutors in assessing liability for discrimination.
“Well-designed diversity, equity, inclusion, and accessibility initiatives also call on employers to pay attention to the (intentional and unintentional) impact their policies and practices have on different groups of current and prospective employees,” the guidance reads. “For decades, both state and federal courts have consistently recognized that this does not amount to impermissible discrimination. In fact, employment discrimination laws generally require employers to pay attention to the impact their practices have on different groups based on protected characteristics in order to avoid and limit liability for unlawful conduct.”
As far as best practices in implement DEIA programs, the guidance recommends focusing on supporting all employees and removing obstacles limiting opportunities for underrepresented groups in recruitment and hiring, professional development and retention, and assessment and integration. The guidance lays out the following recommendations:
Recruitment and Hiring
- Prioritize attracting a larger applicant pool with a variety of backgrounds.
- Use panel interviews to ensure multiple perspectives are involved in hiring or promotion and help eliminate bias
- Set standardized criteria for candidate and employee evaluations that focus on skills and experience to ensure merit-based hiring instead of discriminatory outcomes based on subjective or biased decisions.
- Ensure accessible recruitment and hiring practices, including reasonable accommodations.
Professional Development and Retention
- Ensure equal access to professional development, training and mentorship programs with clear guardrails for career growth.
- Set up employee resource groups, or ERGs, for employees of particular backgrounds or common experiences. (Note that interpretations of federal and state law have consistently held such groups cannot be administered in an exclusionary manner, and the Trump administration has specifically called out such groups as being potential targets of investigations and enforcement.)
- Ensure equal access to all aspects of employment through practices such as reasonable accommodations in the workplace.
Assessment and Integration
- Monitor outcomes from policies designed to attract and retain qualified talent.
- Provide clear protocols for reporting discrimination or harassment as well as general communication about employee experiences.
- Establish committees or task forces to help craft strategies that foster inclusive behavior.
- Integrate diverse principles into an organization’s day-to-day business operations.
The guidance notably does not endorse the controversial practices of numerical targets or quotas.
Employers are likely to be confused by the ongoing political fight over the future of DEI policies. Indeed, Missouri Attorney General Andrew Bailey also publicized a lawsuit he filed against Starbucks for promoting DEI in the workplace even after the company had abandoned its numerical targets. In addition, Florida Attorney General Ashley Moody on Feb. 20, 2025 filed suit against Target Corporation claiming the company committed securities fraud by failing to disclose the risks of its DEI initiatives to shareholders. The conflicting enforcement priorities among red and blue state attorneys general will undoubtedly cause employers to act with caution when considering DEI programs.
For help navigating the emerging concerns related to diverse and inclusive employment practices, please reach out to one of the authors or your regular Brownstein counsel.
Brownstein will be maintaining a tracker of the EOs issued by President Trump in the first days and weeks of his second term. The tracker can be viewed by clicking the link here.
This document is intended to provide you with general information regarding guidance from a group of Democratic state attorneys general related to DEI and DEIA programs. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.