16 States Fight Trump’s DEI Ban: What HR Needs to Know

A joint letter signed by the attorneys general of 16 states clarifies their support for DEI programs, noting the “important role of diversity, equity, inclusion, and accessibility efforts … in creating and maintaining legally compliant and thriving workplaces.”

Massachusetts AG Andrea Joy Campbell and Illinois AG Kwame Raoul issued the letter. State AGs from Arizona, California, Connecticut, Delaware, Hawaii, Maine, Maryland, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island and Vermont also signed.

The letter aims to address concerns “from many in the private sector about the continued viability” of DEI initiatives in light of one of President Trump’s executive orders, which instructs federal agencies to target “illegal DEI and DEIA policies” in the private sector.

What Private Employers Need to Know 

Specifically, the order instructs heads of agencies to compile lists of “egregious and discriminatory DEI practitioners” by sector.

It specifically targets “potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, state and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars.”

State AGs: DEI is Not the Same as Affirmative Action

The letter points out that DEI initiatives – when handled properly – comply with Title VII and analogous state anti-discrimination laws.

Moreover, it states that DEI initiatives “promoting diversity, equity, inclusion, accessibility, various skill sets, and different perspectives and experiences in the workplace are not the same as affirmative action and do not involve providing preferences to individuals based on protected characteristics in discrete hiring, promotion, or job retention decisions.”

In the letter, the state AGs say that Trump’s executive order has created confusion, but it “cannot and does not prohibit otherwise lawful practices and policies to promote diversity, equity, inclusion and accessibility.”

Guidance Outlines Best Practices: 3 Key Areas

For employers that wish to maintain a focus on DEI, the guidance also outlines best practices for DEI initiatives in three key areas: 1) recruitment and hiring, 2) professional development and retention, and 3) assessment and integration.

1. Recruitment and Hiring

Here are DEI best practices to include in recruitment and hiring procedures, according to the guidance:

• Prioritizing widescale recruitment efforts to attract a larger applicant pool from various backgrounds.
• Using panel interviews to ensure that multiple people are involved in hiring or promotion recommendations.
• Setting standardized criteria for evaluating candidates and employees that are focused on skills and experience to ensure that hiring is based on merit rather than subjective and biased judgments that can lead to discriminatory outcomes.
• Ensuring accessible recruitment and hiring practices and protocols, including reasonable accommodations as appropriate.

2. Professional Development and Retention

The guidance lists DEI best practices for professional development and retention:

• Ensuring equal access to all aspects of professional development, training, and mentorship programs that provide clear pathways for career growth. 
• Setting up Employee Resource Groups (ERGs) to create an inclusive and supportive space where employees of particular backgrounds or common experiences feel valued and heard. 
• Conducting training on topics such as unconscious bias, inclusive leadership, and disability awareness to improve employee confidence and create a shared understanding of cultural norms. 
• Ensuring equal access to all aspects of employment, including through reasonable workplace accommodations.

3. Assessment and Integration

Ensuring adequate assessment and integration of DEI practices helps to ensure the maximum success of the programs and implementing companies, according to the guidance. It recommends: 

• Monitoring the success of policies and practices in attracting and retaining qualified talent, ensuring an inclusive, accessible, and collaborative environment, and meeting other related goals. 
• Creating clear protocols for reporting discrimination or harassment and more general communication and feedback loops for employees to provide information about their experiences in the workplace. 
• Establishing work groups to research, collaborate, pilot, and actively participate in crafting strategies that support more inclusive behaviors and practices. 
• Integrating principles and practices promoting belonging and unity into an organization’s everyday way of doing business.

The Uncertainty Around DEI: What to Expect Next

It’s important to note that there are currently unresolved legal challenges, so it’s still not clear how the DEI situation will play out. 

In the meantime, as the attorneys at Fisher Phillips note, increased federal scrutiny on DEI programs is likely. So employers should expect: 

• Increased state agency attention, particularly for companies with federal contracts.
• Further state-level guidance. Other states may follow the lead of these 16 AGs – while states with opposing views on DEI may issue their own guidance (or take legal action, like the Missouri AG who recently sued Starbucks over its diversity programs).
• Evolving best practices. Both federal requirements and state-level guidance may evolve as legal decisions are reached.

We’ll keep you posted.