Private sector DEI programs still legal despite Trump's executive order, Maryland AG says

Maryland Attorney General Anthony Brown is one of 16 state attorneys general joining together to issue guidance on how organizations should approach Diversity, Equity, Inclusion, and Accessibility (DEIA) programs in the workplace.

In the letter, the AGs emphasize that DEI programs are still legal, despite an executive order issued by President Trump halting federal DEI programs nationwide.

Following the order, Maryland leaders shared their support for DEI programs, and the City of Baltimore responded with a lawsuit alleging that the order would stifle programs the city relies on for essential functions.

What is DEI and DEIA?

DEI and DEIA refer to principles of diversity, equity, inclusion and accessibility.

While the push gained momentum after the 2020 murder of George Floyd, DEI has much earlier roots.

The concept dates back to the Civil Rights Act of 1964, which banned employment discrimination based on race, color, sex, religion, and other criteria. Since then, other policies seeking to eliminate hiring bias, promote fairness in the workplace, and provide equal opportunities to people of color, women, and individuals with disabilities have arisen. DEI has also expanded to include sexual orientation and gender identity.

Are workplace DEI and DEIA programs legal?

Mr. Trump's executive order calls for an end to "discriminatory programs," including "'diversity, equity, inclusion, and accessibility' (DEIA) mandates, policies, programs, preferences, and activities in the Federal Government, under whatever name they appear."

It also instructs the U.S. attorney general to create a plan that would deter the private sector from continuing DEI programs.

According to the Bureau of Justice Assistance, "Executive Orders (EOs) are official documents … through which the President of the United States manages the operations of the Federal Government."

But the memo from the 16 state attorneys general says Mr. Trump's executive action does not have the authority to mandate an end to DEI and DEIA programs within the private sector.

"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 memo reads.

AGs say DEI prevents workplace discrimination

The attorneys general argue that DEI employment practices are not only lawful but exist to prevent workplace discrimination — protecting companies from the risk of lawsuits.

"Employment policies incorporating diversity, equity, inclusion, and accessibility 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."

According to the 16 attorneys general, more than 285,000 discrimination complaints have been filed with the Equal Employment Opportunity Commission by employees in their states alone. 

In the letter, the attorneys general said Mr. Trump's executive order is misleading and suggests that DEI policies are discriminatory practices.

"The Executive Order states what is already the law—that discrimination is illegal—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," the coalition of attorneys general wrote. "This conflation is inaccurate and misleading. 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 Executive Order cannot and does not prohibit these otherwise lawful practices and policies."

How should organizations implement DEI policies?

The attorneys general encouraged organizations to prioritize wide-scale recruitment efforts to attract diverse applicant pools, while using panel interviews to ensure multiple perspectives in hiring and promotion decisions.

The AGs said companies should also establish standardized evaluation criteria focused on skills and experience to maintain objective, merit-based hiring processes.

Companies are also encouraged to maintain accessible recruitment practices and provide reasonable accommodations throughout the hiring process.

In the letter, the attorneys general also told companies to ensure that employees have equal access to professional development, training, and mentorship programs to minimize turnover rates and strengthen organizational culture.

They also recommended employee resource groups, or ERGs, which are spaces where employees of common backgrounds can feel recognized and supported.

In addition, the AGs encouraged organizations to conduct training on unconscious bias, inclusive leadership, and disability awareness.

How do DEI programs impact the workplace?

DEI experts told CBS News that DEI is often misperceived as being solely focused on race. Policies giving working parents flexible work hours or establishing professional groups based on shared identities, such as sexual orientation, could also be classified as DEI programs.

Proponents of DEI argue that it improves the quality of the workforce and its employees, while opponents argue DEI programs work against the principle of merit-based hiring and promotions or even promote discrimination themselves. 

According to Mr. Trump's executive order, DEI policies have led to "illegal, pernicious discrimination that has prioritized how people were born instead of what they were capable of doing."

In a statement Thursday, Attorney General Brown said companies in the top quartile for diversity are 35% more likely to have financial gains above their respective industry counterparts, citing a study by the consulting firm McKinsey & Company.

"Diversity, equity, inclusion, and accessibility initiatives are not only legal, they are essential for creating fair, thriving workplaces. They help businesses comply with the law, prevent discrimination, and ensure equal opportunities for all employees," Brown said. "DEIA policies are critical for expanding talent pools, addressing bias, and fostering employee success. Far from being illegal, they are vital for business growth, retention, and engagement."