Sixteen State Attorneys General: “DEI Best Practices Are Not Illegal”

The Attorneys General of Massachusetts and Illinois, joined by the Attorneys General of 14 other states (Arizona, California, Connecticut, Delaware, Hawaii, Maine, Maryland, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island, and Vermont), have published an open letter titled, “Multi-State Guidance Concerning Diversity, Equity, Inclusion, and Accessibility Employment Initiatives” in response to President Trump’s recent Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”

The letter unequivocally declares that “[D]iversity, equity, inclusion, and accessibility best practices are not illegal” (emphasis added), and encourages employers in their respective states to continue with their lawful DEI policies and programs. The letter goes on to argue that the Trump administration “conflates unlawful preferences in hiring and promotion with sound and lawful best practices for promoting diversity, equity, inclusion, and accessibility in the workforce.”

Roadmap for DEI Compliance

The letter attempts to provide employers with a roadmap for developing legal DEIA practices. It outlines DEI best practices deemed legal by the Attorneys General under federal law in three broad areas:

• recruitment and hiring
• professional development and retention
• assessment and integration

Notably, among the best practices listed are the formation of Employee Resource Groups (ERGs) and conducting training on topics including unconscious bias and inclusive leadership.

Monitoring is Critical

The Attorneys General note that employers need to monitor the effects and impacts of their policies, procedures, and practices to guard against systemic 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. 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” (emphasis in the original).

This is particularly important when one considers that Executive Order 14173 will require federal contractors to certify they do not operate any programs “promoting DEI” that violate any federal non-discrimination laws. Without robust monitoring, which is perfectly legal to do, contractor employers may not have a reasonable basis for certification under the False Claims Act.

Any policy or practice could have an unintended discriminatory effect, and what constitutes “promoting DEI” is undefined and unclear. Berkshire helps employers monitor their entire employment landscape for potentially negative impacts of any policy or combination of policies.

AGs Stand Ready to Support

The letter concludes by stating the 16 Attorneys General who joined in the letter “stand ready to support organizations in our respective states as they continue to build and sustain successful and inclusive workplaces by implementing robust diversity, equity, inclusion, and accessibility policies consistent with their obligations under our laws.”

What that support consists of is unclear but seems to imply that if and when employers in their states face challenges to their DEI programs, they may not have to face them alone.

Berkshire Can Also Help

This is one of the many challenges facing companies under President Trump’s recent policy announcements.

Berkshire is here to help. Along with our parent company Resolution Economics, we can partner with our clients to audit their current DEI programs, policies, and practices, and help stand up new ones. We can also assist organizations with a data-driven review of the effectiveness and impact of your policies and practices.