DEI Guidance: Attorneys General Illuminate Inclusion

While I hung out in Dublin, Ireland last week, the Attorneys General of 16 states (Massachusetts, Illinois, Arizona, California, Connecticut, Delaware, Hawaii, Maine, Maryland, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island, and Vermont) issued multi-state guidance (“Guidance”) to clarify the legality and importance of diversity, equity, inclusion, and accessibility (DEI/DEIA) initiatives in the workplace in light of recent Executive Order Ending Illegal Discrimination and Restoring Merit-Based Opportunity (the “EO”).

Here’s what employers need to know about this critical Guidance.

The Legality of DEI/DEIA Programs and Initiatives

While the EO targets “illegal DEI and DEIA policies,” the Attorneys General clarify that such initiatives are lawful and beneficial. 

The Guidance takes the position that the EO conflates unlawful preferences in hiring and promotion with lawful best practices for promoting diversity, equity, inclusion, and accessibility. 

In fact, the Guidance explains that the federal government does not have the authority to prohibit lawful DEI/DEIA activities in the private sector or mandate their removal.

The Benefits of DEI/DEIA Programs Are Many

DEI/DEIA initiatives are not just about compliance—they foster inclusive and respectful workplaces where employees can thrive. 

Effective DEI/DEIA policies reduce litigation risk by protecting against unlawful discrimination and harassment. Indeed, companies with robust DEI/DEIA practices are less likely to face discrimination complaints and are more likely to create dynamic, competitive, and resilient workplaces. 

Over the past five years, employees have filed more than 285,000 Charges of Discrimination with the Equal Employment Opportunity Commission (EEOC) by employees in the states represented by the Attorneys General. Combatting discrimination remains a strategic priority, the Guidance explains, and DEI/DEIA initiatives play a crucial role in this effort. 

DEI/DEIA is good business.

Preventing Workplace Discrimination

The Guidance also delves into an area I have written about for years—DEI/DEIA initiatives mitigate risks associated with discrimination and hostile work environments by ensuring diverse perspectives are included in the workplace and promptly addressing any unlawful conduct. 

State and federal laws, including Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA), prohibit employers from engaging in discriminatory practices. Most state laws also hold employers vicariously liable for discriminatory conduct by their employees. 

Promoting Business Success

DEI/DEIA initiatives are not just about legal compliance; they also contribute to business success. Companies that embed DEI/DEIA values within their culture reduce biases, boost workplace morale, foster collaboration, and create opportunities for all employees. 

Image by Arek Socha from Pixabay

Diverse and inclusive organizations tend to outperform their peers, with higher returns, lower turnover, and a more attractive workplace for top talent.  A study by McKinsey & Company found that companies in the top quartile for diversity were 35% more likely to have financial gains above their industry median. 

The Guidance promotes the idea that diversity is just good business.

Employer Best Practices

Helpfully, the Guidance provides a tidy list of best practices for employers. It explains that employers should focus on three key areas to implement effective DEI/DEIA initiatives: recruitment and hiring, professional development and retention, and assessment and integration.

Recruitment and Hiring:

• Prioritize recruitment efforts on a wider scale to attract a diverse pool of applicants;

• Utilize panel interviews to eliminate bias and ensure fair hiring decisions;

• Standardize criteria for evaluating candidates based on skills and experience;

• Ensure accessible recruitment practices, including reasonable accommodations (which also ensures compliance with the Americans with Disabilities Act and state laws preventing disability discrimination).

Professional Development and Retention:

• Provide equal access to professional development, training, and mentorship programs.

• Establish Employee Resource Groups (ERGs) to create supportive spaces for employees.

• Conduct training on unconscious bias, inclusive leadership, and disability awareness.

• Ensure equal access to all aspects of employment, including reasonable accommodations.

Assessment and Integration:

• Monitor the success of DEI/DEIA policies in attracting and retaining talent.

• Create clear protocols for reporting discrimination and harassment.

• Establish work groups to develop and implement inclusive strategies.

Employer Takeaways

The Guidance offers these takeaways for employers:

1.   DEI/DEIA Initiatives are legal and beneficial: Despite the EO, DEI/DEIA initiatives are lawful and play a crucial role in creating compliant and thriving workplaces.

2.   Promotes proactive prevention of discrimination: Implementing DEI/DEIA initiatives helps prevent workplace discrimination, mitigates litigation risk, and ensures compliance with state and federal laws.

3.   Business success through inclusion: Companies that prioritize DEI/DEIA values tend to outperform their peers, with higher financial returns, lower turnover, and a more attractive workplace for top talent.

Preferences for any group do not make an appearance in this Guidance.