Blue states respond to Trump executive order with DEI guidance

Responding to employer concerns, a group of Attorneys General representing 16 states has issued guidance about the legality of diversity, equity, inclusion and accessibility (DEIA) programs and policies in the wake of President Trump’s Executive Order (EO) 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity.

Signed on January 21, 2025, EO 14173 directs all federal agencies to combat what it describes as “illegal private-sector DEI preferences, mandates, policies, programs and activities.” In response to the EO, Attorney General Pam Bondi issued a memo on February 5 directing the Civil Rights Division of the Department of Justice (DOJ) to “investigate, eliminate, and penalize illegal DEI and DEIA” in the private sector.

What is illegal DEI?

Considerable uncertainty surrounds the meaning of the term “illegal DEI,” which has led to confusion for many employers. A number of high-profile organizations have publicly scaled back or eliminated their DEI efforts recently, while others have maintained their commitment to these endeavors.

Quotas and practices that give preference in hiring and other employment decisions based on race, sex or other protected characteristics have long been illegal under federal and state antidiscrimination laws, with only a few narrow exceptions. However, typical employer DEIA programs do not use those strategies, but instead aim to reduce bias in the workplace and recruit, hire and support employees with a broad range of backgrounds and perspectives.

Multi-state guidance

The multi-state guidance aims to reassure employers that the law regarding DEI and employment discrimination has not changed. EO 14173 “states what is already the law – that discrimination is illegal,” the guidance notes, “but then conflates unlawful preferences in hiring and promotion with sound and lawful best practices for promoting diversity, equity, inclusion, and accessibility in the workforce.”

Well-designed DEIA efforts “are not only compliant with state and federal civil rights laws,” the guidance emphasizes, “but they also help to reduce litigation risk by affirmatively protecting against discriminatory conduct that violates the law.”

According to the guidance, best practices for effective and lawful DEIA include:

• Wide recruitment efforts that aim to attract an applicant pool from a variety of backgrounds.
• Use of panel interviews to guard against bias and ensure fairness in hiring and promotion decisions.
• Standardized criteria for evaluating applicants and employees that focus on relevant skills and experience.
• Accessible recruitment and hiring practices and protocols, including reasonable accommodations as appropriate.
• Equal access to all aspects of employment, including professional development, training and mentorship programs.
• Employee resource groups (ERGs) that provide space for employees of particular backgrounds and common experiences to find support and community.
• Training on unconscious bias, inclusive leadership, disability awareness and related topics.
• Clear protocols for employees to report discrimination and harassment.