16 AGs Issue Guidance on the “Continued Viability and Important Role” of DEI Efforts

“To be clear: the Executive Order cannot and does not prohibit otherwise lawful practices and policies to promote diversity, equity, inclusion and accessibility.” – 16 Democratic AGs

On February 13, 2025, the Attorneys General of 16 states—all Democrats—issued guidance on the “continued viability and important role of” diversity, equity, and inclusion (“DEI”) efforts in the workplace.

Issued in the wake of President Donald Trump’s January 21 Executive Order, titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” the guidance states that “best practices are not illegal,” and that “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.”

This Legal Update summarizes the guidance put out by the Democratic AGs, which further underscores that private employers should carefully review their DEI policies and practices to ensure that they comply with recent guidance at both the federal and state level. We expect that the key issue in this area going forward will be the question of what constitutes “illegal” DEI—with the federal government and Republican AGs likely taking a narrower view than Democratic AGs of the DEI policies and procedures that private employers can continue to employ.

Continued Legal Viability of DEI Policies and Programs

The Democratic AG guidance reaffirms that employment policies incorporating DEI best practices “are not only compliant with state and federal civil rights laws, but they also help to reduce litigation risk by affirmatively protecting against discriminatory conduct that violates the law.” Citing decades of research and data, the guidance notes that “[p]roperly developed and implemented initiatives aimed at ensuring that diverse perspectives are included in the workplace help prevent unlawful discrimination.”

With respect to AG enforcement of the civil rights laws, the Democratic AG guidance specifically notes that “the absence of policies and procedures” and “the fact that a company has failed to implement adequate non-discrimination and fair employment policies, procedures, and trainings” may be used to assess culpability and liability for discriminatory conduct.

The Democratic AG guidance notes that President Trump’s Executive Order “merely restates” the well-settled legal principle that preferences based on protected characteristics in hiring and promotion are unlawful under federal law, “except under narrow circumstances.”

“To be clear: the Executive Order cannot and does not prohibit otherwise lawful practices and policies to promote diversity, equity, inclusion and accessibility,” the Democratic AG guidance emphasizes.

Best Practices for DEI

The Democratic guidance then identifies a number of what the Democratic AGs consider to be lawful “best practices.” We note that the Trump Administration has not publicly commented on the Democratic AG’s guidance. The Democratic AG’s suggested best practices include:

Recruitment and Hiring:

• Prioritizing widescale recruitment efforts to attract a larger pool of applicants from a variety of backgrounds.
• Using panel interviews, which ensure that multiple people are involved in a hiring or promotion recommendation, helping to eliminate bias in the hiring process, and to ensure fair and objective decisions.
• Setting standardized criteria for evaluating candidates and employees, focused on skills and experience to ensure that hiring is based on merit rather than subjective and biased judgments that can lead to discriminatory outcomes.
• Ensuring accessible recruitment and hiring practices and protocols, including reasonable accommodations as appropriate.

Professional Development and Retention:

• Ensuring equal access to all aspects of professional development, training, and mentorship programs that provide clear pathways for career growth.
• Setting up Employee Resource Groups that are open to all employees but that help employees of particular backgrounds or common experiences feel valued and heard.
• Conducting training on topics such as unconscious bias and inclusive leadership.

Assessment and Integration:

• Monitoring the success of policies and practices in attracting and retaining qualified talent, ensuring an inclusive, accessible, and collaborative environment, and meeting other related goals.
• Creating clear protocols for reporting discrimination or harassment and more general communication and feedback loops for employees to provide information about their experiences in the workplace.
• Integrating principles and practices promoting belonging and unity into an organization’s standard business practices.

The guidance was issued by the Attorneys General of Massachusetts, Illinois, Arizona, California, Connecticut, Delaware, Hawaii, Maine, Maryland, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island, and Vermont.

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Mayer Brown is available to help private employers and educational institutions successfully develop, implement, and defend lawful inclusion, nondiscrimination and other DEI-related policies and programs.