Massachusetts and Connecticut Join Other States in Issuing Guidance for Businesses on Diversity, Equity, Inclusion, and Accessibility Initiatives in the Workplace

By Meaghan Murphy and Maureen James - Skoler Abbott P.C.

April 2, 2025

On February 13, 2025, fifteen State Attorneys General issued written guidance entitled “Multi-State Guidance Concerning Diversity, Equity, Inclusion, and Accessibility Employment Initiatives” (the Massachusetts “Guidance” can be viewed here). The Guidance opens as follows:

    The Attorneys General of Massachusetts, Illinois, Arizona, California, Connecticut, Delaware, Hawaii, Maine, Maryland, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island, and Vermont are issuing this Guidance to help businesses, nonprofits, and other organizations operating in our respective states understand the continued viability and important role of diversity, equity, inclusion, and accessibility efforts (sometimes referred to as “DEI” or “DEIA” initiatives) in creating and maintaining legally compliant and thriving workplaces.

The Guidance was issued in response to concerns from many in the private sector about DEI or DEIA initiatives following President Trump’s Executive Orders that (1) rescind affirmative action requirements in government contracting, and (2) direct federal agencies to aggressively pursue “illegal DEI” programs and policies of both government contractors and private employers. The Guidance aims to clarify the legality and utility of such programs for businesses, nonprofits, and other organizations operating in those fifteen states.

What Is DEIA and How Does it Differ from Affirmative Action?

Before we get into the Guidance, let’s discuss how DEIA and affirmative action overlap and differ.  DEIA and affirmative action share the goal of promoting diversity in the workplace.  Affirmative action is intended to compensate for past discriminatory practices, such as against racial minorities and women, and is often implemented by establishing quotas or preferences in hiring and college admissions, among other areas. Critics of affirmative action claim that the practice is discriminatory and results in less qualified or unqualified employees and college admittees.  Affirmative action has been found to be illegal except in limited circumstances.   In a landmark 2023 decision, the U.S. Supreme Court struck down affirmative action programs that explicitly considered race as a factor in individual college admissions decisions. By a vote of 6-3, the Justices ruled that the admissions programs used by the University of North Carolina and Harvard College violated the Constitution’s equal protection clause, which bars racial discrimination by government entities.  We wrote about that decision here, and forecast that workplace DEIA initiatives might soon come under scrutiny.

While affirmative action is intended to give preference to groups that traditionally have been discriminated against, DEIA is a broader approach to creating an environment where everyone is treated equally, valued, and respected.  DEIA can include educational programs, training, mentorship opportunities, and policy changes that are designed to promote inclusivity and equality.  Unlike affirmative action, DEIA initiatives do not involve providing preferences to individuals based on protected characteristics, such as race or sex, in individual hiring or other employment decisions. Instead, according to the Guidance, DEIA initiatives ensure that employers can recruit, hire, and retain the most qualified employees, and that they do not overlook or bypass anyone because of a protected characteristic. According to the Guidance, well-designed DEIA initiatives also ensure that “the workplace provides the support needed for employees to continue to develop their skills and contribute to the success of their organizations” and “call on employers to pay attention to the (intentional and unintentional) impact their policies and practices have on different groups of current and prospective employees.”  DEIA is not designed to provide minorities with more opportunities than non-minorities but, rather, to afford comparable individuals with equal opportunities.

The EEOC and DOJ Weigh In

On March 19, 2025, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) issued two technical assistance documents (found at: https://www.eeoc.gov/wysk/what-you-should-know-about-dei-related-discrimination-work; and https://www.eeoc.gov/what-do-if-you-experience-discrimination-related-dei-work).   As noted in the introduction of the EEOC’s “What to Do If You Experience Discrimination Related to DEI at Work,” “[d]iversity, equity and inclusion (DEI) is a broad term that is not defined in Title VII of the Civil Rights Act of 1964…Under Title VII, DEI initiatives, policies, programs, or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated – in whole or in part – by an employee’s or applicant’s race, sex, or other protected characteristic.”  The DOJ’s “What You Should Know About DEI-Related Discrimination at Work” materials similarly hold DEI against the lens of Title VII, which remains unchanged by the DEI Executive Orders issued and prohibits discrimination.

DEIA is Not Unlawful

Noting that the DEI Executive Order states what is already the law – that discrimination is illegal – the Attorney Generals’ Guidance then criticizes it for conflating affirmative action with DEIA best practices.   In doing so, the Guidance highlights the very important distinction that employers need to understand in today’s climate: DEIA initiatives are not the same as affirmative action.

The Guidance emphasizes that DEIA initiatives are not illegal and questions the President’s power to issue the DEI Order. In fact, the Guidance opines conclusively that the federal government does not have the legal authority to issue the DEI Order as it “prohibits otherwise lawful activities in the private sector or mandates the wholesale removal of [DEIA] policies and practices within private organizations, including those that receive federal contracts and grants.”

The Guidance also sets forth some helpful best practices for effective DEIA initiatives with respect to recruitment and hiring, professional development and retention, and assessment and integration to ensure a diverse workforce.

The end of the Guidance includes a statement of commitment by the State Attorneys General to “stand ready to support organizations in our respective states as they continue to build and sustain successful and inclusive workplaces by implementing robust [DEIA] policies consistent with their obligations under our laws.”

On March 4, 2025, the same coalition of Attorneys General issued a similar guidance to ensure K-12 schools, colleges, and universities across the nation understand the legality, viability, and importance of DEIA policies and practices in education.

The Guidance is not wholly inconsistent with the EEOC and DOJ’s technical assistance documents, but it definitely takes a different approach to the topic.  Both continue to advise employers of their obligations under Title VII and employee and/or applicant’s rights if they feel that they have suffered as the result of discrimination.  The FAQs outlined by the EEOC advise of the process of seeking relief from any alleged discrimination through the filing of a complaint with the EEOC and/or equivalent state agencies, a process which remains unchanged.

What Should Employers Do Now?

Preferences in hiring are not the same as best practices for promoting diversity, equity, inclusion, and accessibility in the workplace. Because the current administration has been using the terms DEI and affirmative action interchangeably, we recommend employers review the Guidance before eliminating or substantially changing any DEI initiatives to make sure that they have a clear understanding of what constitutes a DEI initiative vs. affirmative action.  

www.skoler-abbott.com