The attorneys general of sixteen states recently released guidance explaining how diversity, equity, and inclusion (DEI) programs in the private sector can remain viable and legal. This guidance came shortly after President Donald Trump issued two executive orders targeting “unlawful DEI” programs in the federal government, federal contractors, and federal fund recipients, and directed the U.S. attorney general to investigate “unlawful DEI” programs in the private sector.
Quick Hits
- The attorneys general of sixteen states signaled to private employers that their DEI programs can remain legal, if designed and implemented correctly under applicable laws.
- The guidance came in response to President Trump’s executive orders to stop DEI “mandates, policies, programs, preferences, and activities” in the federal government and “unlawful DEI” programs by federal contractors and federal money recipients.
- The guidance reiterates that racial and sex-based quotas and unlawful preferences in hiring and promotions have been illegal for decades under Title VII of the Civil Rights Act of 1964.
On February 13, 2025, the attorneys general of Arizona, California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island, and Vermont issued guidance stating DEI programs are still legal when structured and implemented properly.
State laws prohibiting employment discrimination based on race or sex vary in scope. Some of them go beyond the protections in the federal antidiscrimination laws.
While noting that race- and gender-based preferences in hiring and promotions have been unlawful for decades, the new guidance provides myriad legally compliant strategies for employers to enhance diversity, equity, and inclusion in the workplace, such as:
- prioritizing widescale recruitment efforts to attract a larger pool of job candidates from a variety of backgrounds;
- using panel interviews to help eliminate bias in the hiring process;
- setting standardized criteria for evaluating candidates and employees, focused on skills
and experience;
- ensuring accessible recruitment and hiring practices, including reasonable accommodations as appropriate;
- ensuring equal access to all aspects of professional development, training, and mentorship programs;
- maintaining employee resource groups for workers with certain backgrounds or experiences;
- providing employee training on unconscious bias, inclusive leadership, and disability awareness; and
- maintaining clear protocols for reporting discrimination and harassment in the workplace.
“Properly developed and implemented initiatives aimed at ensuring that diverse perspectives are included in the workplace help prevent unlawful discrimination,” the guidance states. “When companies embed the values of diversity, equity, inclusion, and accessibility within an organization’s culture, they reduce biases, boost workplace morale, foster collaboration, and create opportunities for all employees.”
Next Steps
A group of diversity officers, professors, and restaurant worker advocates has filed suit to challenge President Trump’s executive orders on DEI. Other groups have brought similar lawsuits. It is unclear what impact the challenges to the executive orders will have in light of enforcement efforts.
With the executive orders and leadership shifts at the U.S. Equal Employment Opportunity Commission, the Trump administration has signaled a change in federal enforcement priorities that could make private-sector lawful DEI efforts more risky from a legal standpoint.
Private employers may wish to review their existing DEI programs and policies to ensure compliance with federal and state antidiscrimination laws. In some cases, employers may be able to keep the legally compliant parts of their DEI programs while adjusting or eliminating certain parts that the Trump administration could consider unlawful.
Ogletree Deakins will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion, Employment Law, and State Developments blogs as new information becomes available.