No subtlety can be found in the ongoing assault on diversity, equity, inclusion, and accessibility initiatives (DEIA) in our nation. In response to these unwarranted and reprehensible attacks, I have been vocal and diligent.
As co-chair of the Democratic Attorneys General Association, I currently lead its Diversity, Equity, and Inclusion Working Group. Additionally, in collaboration with 15 other state attorneys general, I am endeavoring to ensure that businesses, nonprofits and other organizations understand the importance of creating and maintaining diverse and legally compliant workplaces.
Employment discrimination is still a serious and persistent problem in the U.S. Over the last five years, more than 285,000 discrimination complaints have been filed with the Equal Employment Opportunity Commission by employees in our states alone.
Combatting employment discrimination is a strategic priority for our offices. Consequently, we have issued guidance throughout our respective states concerning DEIA initiatives, the most critical aspects of which I will briefly highlight.
It is an unfortunate but common misconception that initiatives promoting DEIA in the workplace are the same as affirmative action. To be clear, preferences based on protected characteristics in hiring and promotion have been found to be unlawful under federal law, except under narrow circumstances. DEIA efforts do not involve providing preferences to individuals based on protected characteristics. Instead, these initiatives encourage businesses to hire and retain the most qualified employees by ensuring no individual is bypassed because of a protected characteristic. Thus, there is nothing discriminatory or illegal about such employment practices.
Nevertheless, the Trump administration has aggressively targeted private sector DEIA policies and practices through an executive order directing executive agencies to “combat illegal private-sector DEIA preferences, mandates, policies, programs and activities.” This is highly deceptive. By conflating unlawful preferences in hiring and promotion with sound and lawful DEIA best practices, the federal government has needlessly created widespread confusion. In short, the order and related federal executive actions cannot and do not prohibit lawful DEIA practices and policies.
To quell any remaining confusion or panic, bear in mind that arguments against DEIA initiatives that dare to cite the Supreme Court’s recent decision in Students for Fair Admission v. President & Fellows of Harvard College are equally invalid. That decision has no application to properly designed and implemented DEIA initiatives in the workplace.
Employment policies incorporating DEIA best practices are not only compliant with state and federal civil rights laws, they also help reduce litigation risk by affirmatively protecting against retaliation, harassment, and other discriminatory conduct.
Decades of research and data – as well as the collective experiences of our offices – demonstrate that these types of policies, procedures, and programming help prevent discriminatory conduct and harassment from occurring. They also help ensure that unlawful conduct is promptly identified, reported, and addressed when it does occur. Indeed, the absence of properly implemented policies and procedures to help prevent discrimination and harassment may be a factor considered by enforcement authorities and courts.
Moreover, studies and bottom lines clearly demonstrate that diverse and inclusive organizations, which prioritize equitable practices, tend to outperform their peers. A study by a leading research firm in the U.S. found that companies in the top quartile for diversity were 35% more likely to have financial gains above their respective industry median. In other words, companies that implement DEIA initiatives aimed at complying with their legal obligations can reasonably expect higher returns, lower turnover, and a more attractive workplace for top talent.
The federal government’s efforts to stigmatize and ultimately eradicate DEIA initiatives in the workplace are ludicrous. When companies implement programs that effectively promote diversity and inclusion, they help ensure legal compliance, reduce biases, boost morale, and promote organizational success. Effective DEIA programs support every employee, all while removing barriers that unnecessarily limit opportunities for underrepresented groups.
My counterparts and I will not back down, be misled, or shy away from the nomenclature that advances the interests and vital purposes of DEIA initiatives. To preserve the social fabric of a nation founded on the principles of equality, justice, and liberty, I encourage you to stand firm as well.
Kwame Raoul
Illinois Attorney General