Labor & Employment Law Daily Wrap Up, INDUSTRY NEWS, TRENDS—Coalition of attorneys general publish guidance to support DEIA policies and practices, (Feb 14, 2025)

By Patricia K. Ruiz, J.D.

The AGs argued the EO conflates valid and legal programs and practices supporting diversity, equity, inclusion, and accessibility with unlawful preferences in hiring and promotion based on individuals’ protected characteristics.

Massachusetts Attorney General Andrew Joy Campbell co-led a group of 16 attorneys general to issue guidance to help businesses, nonprofits, and other organizations understand the importance of diversity, equity, inclusion, and accessibility (DEIA) policies and practices in the workplace. The guidance is a response to concerns from employers following an executive order (EO) from the Trump administration purportedly targeting “illegal DEI and DEIA policies.” Campbell co-led the coalition with Illinois Attorney General Kwame Raoul; attorneys general from the states of Arizona, California, Connecticut, Delaware, Hawaii, Maine, Maryland, Minnesota, Nevada, New Jersey, New York, Rhode Island, Oregon, and Vermont.

Conflating DEIA with illegal hiring and promotion practices. The EO targets private sector DEIA policies and practices, directing agencies to “combat illegal private-sector DEIA preferences, mandates, policies, programs, and activities.” According to the guidance, the EO conflates valid and legal programs and practices supporting diversity, equity, inclusion, and accessibility with unlawful preferences in hiring and promotion based on individuals’ protected characteristics. Federal and state courts have consistently recognized that DEIA policies do not amount to impermissible discrimination. In reality, DEIA practices focus on ensuring businesses can recruit, hire, and retain qualified employees and that workplaces provide support needed for all employees to develop their skills and contribute to the success of the business. The guidance affirms that the federal government may not prohibit these efforts in the private sector via EO.

Best practices for recruitment and training. The guidance highlights best practices for recruitment and hiring, including: (1) prioritizing widescale recruitment efforts to attract a larger pool of applicants from a variety of backgrounds; (2) using panel interviews, which ensure multiple people are involved in a hiring or promotion recommendation, helping to eliminate bias; (3) setting standardized criteria for evaluating candidates and employees, focused on skills and experience; and (4) ensuring accessible recruitment and hiring practices and protocols, including reasonable accommodations as appropriate.

Best practices for professional development, retention. The guidance notes that organizations offering benefits such as employee resource groups, mentorship programs, professionalism trainings, and work groups focused on DEIA are proven to have heightened employee retention and engagement. According to the coalition, best practices for professional development and retention include: (1) ensuring equal access to all aspects of promotional development, training, and mentor programs that provide clear pathways for career growth; (2) setting up employee resource groups (ERGs) to create inclusive and supportive spaces where employees of particular backgrounds or common experiences feel valued and heard; (3) conducting training on topics such as unconscious bias, inclusive leadership, and disability awareness to improve employee confidence and create a shared understanding around cultural norms; and (4) ensuring equal access to all aspects of employment, including through reasonable workplace accommodations.

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