Not binding, but Texas employers should pay attention.
Texas Attorney General Ken Paxton (R) issued an Opinion titled “‘Diversity, Equity, and Inclusion’ in Texas” on the Martin Luther King, Jr. holiday. In the 74-page Opinion, AG Paxton takes aim at DEI policies and initiatives in Texas and continues President Trump’s initiatives to end “illegal DEI.”
The Opinion devotes extensive coverage to the concept of equality from a historical and legal perspective, from the Declaration of Independence through the Civil Rights Act of 1964. The Opinion objects to the “[b]ackslide into demographic-based preferences and carveouts” and the “inva[sion]” of Texas by the affirmative action movement. The Opinion concludes that many DEI initiatives violate the constitutions of the United States and the State of Texas, and suggests that many corporate DEI policies violate federal and state anti-discrimination laws.
The Opinion identifies specific Texas state statutes and programs as unlawful:
- The State’s Disadvantaged Business Enterprise programs provide preferred access to contracts based on race or sex.
- State law mandates consideration of race or sex (or both) in appointments to positions on boards, commissions, and advisory bodies.
- State law compels certain utilities to pursue workforce diversity goals through programs, activities, and initiatives — regardless of any showing of past discrimination based on race or sex.
- Statutes that fund state parks prioritize funding to “underserved populations,” a term defined to include minorities and females.
- Economic development schemes condition project approvals and benefits on commitments to hire minorities and to contract with minority-owned businesses.
With respect to the private sector, the Opinion focuses on diversity measures that “center around policies, benchmarks, or numerical targets designed to increase representation of certain demographic groups.”
According to the Opinion, using protected characteristics to determine access to jobs, benefits, contracts, or opportunities is impermissible and could result in liability under Title VII of the Civil Rights Act, Section 1981, the Texas Commission on Human Rights Act, or securities laws.
Texas employers should know that Opinions by the Attorney General of Texas are just that – opinions. They do not overturn or change statutory law. As noted on the Texas Attorney General’s website,
An attorney general opinion is a written interpretation of existing law. Attorney general opinions cannot create new provisions in the law or correct unintended, undesirable effects of the law. Attorney general opinions do not necessarily reflect the attorney general's personal views, nor does the attorney general in any way "rule" on what the law should say. Furthermore, attorney general opinions cannot resolve factual disputes.
That said, the Attorney General’s Opinion should not be ignored. Texas employers are advised to evaluate their DEI programs, focus on equal employment opportunity and non-discriminatory practices, and continue to monitor developments in this area of the law.
