Sixteen State Attorneys General Affirm Support for DEI Programs

Topics: Discrimination, Harassment & Retaliation, Employee Hiring, Discipline & Termination, Legal Information, Personnel Policies and Procedures

On February 13, 2025, a coalition of 16 state Attorneys General from left-leaning states such as California, Massachusetts, Illinois, Maryland, and New York issued Guidance entitled “Multi-State Guidance Concerning Diversity, Equity, Inclusion, and Accessibility Employment Initiatives,” which affirms the legality and importance of diversity, equity and inclusion (DEI) initiatives in the workplace. (“Guidance”). 

The Guidance addresses concerns arising from a recent executive order by President Trump targeting private-sector DEI policies. Related articles regarding the President’s Executive Orders on DEI programs in the federal government and private sector can be found here and here. In a Press Release, California Attorney General Rob Bonta stated that many of the Nation’s Civil Rights laws are examples of DEI that cannot be altered by President Trump, as follows: 

“The Civil Rights Act of 1964. The Americans with Disabilities Act. The Age Discrimination in Employment Act. All of these ‘diversity, equity, and inclusion’ laws have made our country fairer and stronger and a place where everyone can thrive. Despite what the President may say, diversity, equity, inclusion, and accessibility initiatives are not illegal – nor can he unilaterally make it so.”

The Guidance emphasizes that efforts to promote diverse and inclusive workplaces are lawful and beneficial for businesses, employees, and consumers alike. 

Key Points from the Guidance:

• Legality of DEI Initiatives: The Guidance clarifies that DEI initiatives are consistent with federal and state laws, including the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. These initiatives focus on creating equitable opportunities and fostering inclusive environments, distinct from unlawful hiring or promotional preferences based on protected characteristics.
   
• Prevention of Workplace Discrimination: Implementing DEI practices helps prevent unlawful discrimination by proactively identifying and addressing policies that may adversely impact certain groups. Research indicates that well-developed DEI initiatives contribute to promptly identifying and resolving discriminatory conduct.
   
• Benefits to Business Performance: Organizations prioritizing DEI principles often experience enhanced financial performance, increased employee morale, and reduced turnover. A study highlighted that companies in the top quartile for diversity were 35% more likely to have financial gains than their industry counterparts.

The Guidance also recommends the following Best Practices for Employers:

• Recruitment and Hiring:
  • Engage in broad recruitment efforts to attract a diverse applicant pool.
  • Utilize panel interviews to mitigate individual biases.
  • Establish standardized evaluation criteria focusing on skills and experience.
  • Ensure recruitment processes are accessible, providing reasonable accommodations as needed.
• Professional Development and Retention:
  • Offer equal access to professional development, training, and mentorship programs.
  • Create Employee Resource Groups to support employees from various backgrounds.
  • Conduct training on topics such as unconscious bias and inclusive leadership.
  • Provide reasonable workplace accommodations to ensure inclusivity.

Implications for California Employers: Navigating DEI Amid Federal Uncertainty

History often repeats itself and this instance appears to be no different. After the United States Supreme Court decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023) (“SFFA”), in which Havard and University of North Carolina’s affirmative action policies were challenged, 13 different state attorneys general from traditionally Republican States sent letters to various Fortune 100 CEOs about their use of DEI in the workplace. Soon after, 21 attorneys general from traditionally Democrat States sent their own letters to Fortune 100 CEOs about continuing DEI efforts. We see this pendulum shift here and given the conflicting messages from federal and state authorities, California employers should proceed with caution and clarity by taking the following steps:

• Review and Refine DEI Policies: Employers should ensure that their diversity initiatives focus on inclusivity, equitable access to opportunities, and compliance with existing anti-discrimination laws rather than implementing explicit hiring preferences based on protected characteristics.
   
• Avoid Quotas or Preferences: While increasing workplace diversity is a lawful and beneficial goal, employers must be careful to avoid policies that could be construed as unlawful preferences or set-asides for specific demographic groups. Instead, DEI efforts should emphasize outreach, equal opportunity, and bias reduction in hiring and promotions.
   
• Monitor Federal and State Developments: Given the evolving legal landscape, California businesses should stay informed on both state and federal actions that may impact workplace policies to ensure the legality of DEI initiatives.
   
• Consult Legal Counsel: Given the potential for legal challenges from both federal authorities and private litigants, employers should work closely with employment law attorneys to ensure their DEI initiatives are structured to withstand legal scrutiny.
   
• Document and Justify Business Rationale for DEI Initiatives: Companies should frame their DEI programs around well-documented business benefits—such as fostering innovation, improving employee retention, and increasing competitiveness—rather than solely as social justice efforts. Having clear, objective metrics tied to business outcomes can help defend against legal challenges.

Conclusion

While President Trump’s executive order has created uncertainty, the Guidance reassures employers that DEI initiatives remain legally viable and beneficial for workplaces. However, businesses must proceed with caution, ensuring that their policies comply with existing anti-discrimination laws while continuing to foster inclusive and diverse workplaces. Employers should seek legal counsel, stay informed, and focus on equity-driven practices aligning with business objectives and legal requirements.

If you have questions regarding this Order, please do not hesitate to contact your favorite CDF attorney.