Republican-led states are rewriting their affirmative action requirements for civil service employment or public contractor regimes, targeting them under US Supreme Court precedent and Trump administration policy shifts.
A wide-range of proposed legislation in Texas, North Carolina, New Hampshire, and Missouri would outlaw private employment and contracting practices that take protected traits like race and gender into consideration or promote diversity, equity, and inclusion efforts.
“This was one of those areas that wasn’t a big focus, and now it’s coming into view” as scrutiny of diversity-related efforts intensifies, said George Ingham, a partner at Hogan Lovells.
Some measures seek to repeal requirements such as engagement efforts with historically marginalized groups, identifying under-representation, and demographic data reporting, while also expanding who can sue state agencies or private employers who receive public funds for damages.
Meanwhile, Wisconsin’s legislature in January approved a resolution letting voters decide this fall on a constitutional ban on bias and preferential treatment in public employment, education, and contracting.
These moves build on recent efforts in Ohio, Tennessee, Texas, and Indiana. Opponents of affirmative action programs—intended to repair discrimination and inequalities in employment and contracting—argue such measures result in bias against White people and are outdated or ineffective to assess whether race and gender-conscious steps provide remedies.
With more GOP actions expected this year, the changes reflect the broader influence of President Donald Trump’s repeal of a 1965 executive order used to combat race and sex bias at federal contractor worksites and enforce affirmative action obligations.
They also could further complicate compliance for multi-national contractors doing business with state and federal governments, especially as jurisdictions like Massachusetts, New Jersey, and Virginia consider countermeasures aimed at encouraging contracting opportunities for historically marginalized groups.
“It is a complex area that employers are trying to navigate, and some states make it more challenging than others,” said Annette Tyman, a partner at Seyfarth Shaw LLP. But they’re still bound by nondiscrimination laws and must remove any barriers to equal access and opportunity, she said.
Test Case
By mirroring the Trump administration, Republican states could insulate themselves from lawsuits like the US Justice Department’s recent challenge to Minnesota’s affirmative action program, said Tony Torain, a partner at McDermott Will & Emery LLP.
In that case, DOJ is also seeking to overturn two Supreme Court precedents permitting affirmative action plans in narrow circumstances to address race or sex imbalances in historically segregated jobs.
These plans can trigger lawsuits under Title VII of the 1964 Civil Rights Act, Section 1981 of the 1866 Civil Rights Act, and analogous state laws prohibiting employment and contracting discrimination.
The Supreme Court’s 2023 Students for Fair Admissions v. Harvard decision prohibiting race-conscious admissions in higher education is often cited by critics as an indicator that the court’s conservative majority may likely invoke the Equal Protection Clause to outlaw similar affirmative action efforts, regardless of remedial effect or intent.
A DOJ victory in the Minnesota lawsuit could give the administration and private litigants legal ammunition to challenge similar state programs that require agencies and contractors to implement affirmative action practices. Some legal observers said the DOJ may have valid reasons to sue the state if its program, in theory or in practice, would cause employment decisions based on protected traits.
Evolving State Regimes
Ohio was among the first to pass legislation last year to repeal requirements for contractors to maintain and report on affirmative action programs for employing and “utilizing economically disadvantaged persons” to bid on public projects.
Tennessee also ended the collection of workforce data on women, racial and ethnic minorities, disabled individuals, and veterans. References to these groups were also removed from its equal employment opportunity plan.
In recent weeks, the attorneys general of Florida and Texas issued separate legal opinions stating that certain DEI and affirmative action programs in both the public and private sectors are regarded as unlawful race- or sex-based discrimination within their respective jurisdictions. The AGs signaled that enforcement actions may be on the horizon.
Indiana updated its nondiscrimination clause for contractors, and indicated an intent to pursue enforcement actions against those promoting unlawful DEI initiatives under the False Claims Act—a novel legal strategy the Trump administration is exploring on the federal level.
Several months before the DOJ sued, Minnesota changed some of its contractor affirmative action compliance rules, including the need to set placement goals for underrepresented groups. The state still requires the analysis, however.
Attorneys like Torain, who advises contractors, said the ongoing changes underscore the urgent need for a national standard. But this solution may take years to materialize.
Although anti-discrimination laws ban quotas and the use of protected traits in employment and contracting, he said that conflicting definitions of “illegal” DEI increase litigation risk.
‘Tug of War’
Democrats’ response to red states will be a key area of focus for legal observers.
Democratic-led states are trying to enact legislation to replace regulations that could otherwise be easily overturned with a federal action, said Alissa Horvitz, co-founder of Roffman Horvitz PLC.
“There’s this push now to put into law certain equal employment opportunity, self-analysis requirements that perhaps had not been there before. If at the federal level, the president can just simply erase 60 years of civil rights compliance with an executive order, these other states are nervous,” she said. “They value the ability to ensure that taxpayer dollars are being used to buy goods and services from companies that are complying with equal opportunity.”
But Torain cautioned this partisan “tug of war” can be “risky” for large, multi-jurisdictional employers.
“You’re facing a risk by either losing a contract or being prosecuted by the federal government if you have both a state and federal contract where there are conflicting rules,” he said.
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