The Attorney General for the state of Texas has issued a new opinion on the legality of DEI programs. In it, the AG addresses two types of DEI programs: those run by the government and those run by private industry. While the opinion weighs heavily against public sector programs, its guidance on the private sector is more nuanced. A recent Gibson Dunn memo breaks down the types of private sector programs covered by the opinion:
- “Demographically-based workforce representation goals;
- Diverse slate policies;
- Diversity fellowships or other race- or gender-based hiring programs;
- Tying compensation to DEI-related metrics;
- Identity-based employee resource groups, mentoring, and training;
- Supplier diversity programs; and
- Diversity-related governance, including Chief Diversity Officers, Diversity offices and
- Board committees overseeing DEI programs.
The memo goes on to describe how the Texas AG views the legality of such programs, stating:
“The Attorney General’s Opinion does not characterize these programs as categorically unlawful and notes that ‘the mere existence of a DEI policy, in isolation, may not impose liability under Title VII.'”
The AG warns that while not categorically unlawful, private sector DEI could run afoul of Title VII, create a “hostile work environment,” violate Section 1981, or violate securities laws at the federal and state level. The Texas AG’s opinion is not legally binding, though Texas courts may find it persuasive. It’s no surprise that the Texas AG views corporate DEI as potentially unlawful. Texas has been spearheading the Anti-ESG and Anti-DEI movements for years now. However, it is important to pay attention to what the Texas AG says because time and again we’ve seen Texas policy become national policy. If your company has DEI initiatives, it may be worth assessing them in light of this opinion and shoring up any legal deficiencies.
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