The attorneys general from 16 states have issued a joint guidance letter in response to orders and statements from the Trump administration, including a memorandum from the U.S. Department of Justice (DOJ) titled “Ending Illegal DEI and DEIA Discrimination and Preferences.”
The five-page letter, titled Multi-State Guidance Concerning Diversity, Equity, Inclusion, and Accessibility Employment Initiatives, was led by the AGs of Massachusetts and Illinois and joined by the AGs of Arizona, California, Connecticut, Delaware, Hawaii, Maine, Maryland, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island and Vermont. (See our previous alert: DOJ Targets Private-Sector DEI Programs: What Employers Need to Know.)
The letter states that DEIA initiatives remain lawful when implemented in compliance with civil rights laws.
“Diversity, equity, inclusion, and accessibility best practices are not illegal, and the federal government does not have the legal authority to issue an executive order that prohibits otherwise lawful activities in the private sector or mandates the wholesale removal of these policies and practices within private organizations, including those that receive federal contracts and grants,” the letter says.
Clarity on Lawful and Unlawful Practices
The letter also distinguishes between lawful DEI efforts and hiring preferences that have been found unlawful in certain circumstances. It clarifies that, while discrimination is prohibited under federal and state law, well-designed DEI initiatives aimed at fostering inclusive workplaces remain legal and can help mitigate legal risk.
“Policies and practices that promote diversity, equity, inclusion, and accessibility are not the same as preferences in individual hiring and promotion decisions that have been found to be unlawful,” the letter states.
President Trump’s executive order “cannot and does not prohibit these otherwise lawful practices and policies. As such, this Guidance aims to clarify the state of the law for businesses, nonprofits, and other organizations operating in our states,” the letter states.
Considerations for Employers
Businesses and nonprofits operating in the 16 states that joined the letter should review their DEI policies to ensure compliance with both federal and state laws.
The letter highlights what it describes as best practices that support inclusion while maintaining legal compliance, including:
- Expanding recruitment efforts to attract a broad and diverse pool of applicants from a variety of backgrounds.
- Standardizing hiring criteria to focus on skills and experience.
- Implementing mentorship and professional development programs to support employee retention.
- Creating Employee Resource Groups (ERGs) to foster workplace inclusion.
- Providing training on bias, leadership, and accessibility to strengthen workplace culture.
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