Democratic AGs Gear Up to Fight Trump on Workplace Law Issues

Democratic attorneys general are preparing to counter the incoming Trump administration’s workplace law policies, in which diversity and discrimination issues will play a prominent role.

President-elect Donald Trump is expected to revive many employment-related policies that faced legal challenges during his first term—ranging from changes in the way tipped employees are paid to a rollback of workplace injury reporting requirements.

Blue-state attorneys general will be a key line of defense for Democrats in Trump’s second term if he makes anticipated changes to the federal government’s approach to civil rights law. They’ll be up against a federal judiciary that has grown more conservative.

“As we did during Trump 1.0, we’re prepared to be very active in our litigation strategy,” California Attorney General Rob Bonta said in an interview. “We will ensure the Trump administration’s actions in the worker and labor space are lawful and vigorously guard that boundary.”

AGs were involved in 160 lawsuits contesting Trump’s first-term actions across many policy areas, according to a database maintained by Paul Nolette, a political science professor at Marquette University.

Since the first Trump administration, the US Supreme Court issued a 2023 decision striking down affirmative action in higher education, sparking heightened legal activism against diversity, equity, and inclusion policies.

The decision “gives a broader sense of disapproval for rules that have any sort of carveouts for sex or race,” beyond just higher education, Nolette said. “I would assume the Trump administration is going to push those issues really hard.”

Federal Contractors, Enforcement

The first Trump administration expanded the religious exemptions from anti-bias laws available for federal contractors, prompting a lawsuit from California and New York attorneys general that was later dismissed when President Joe Biden rescinded the rule.

Trump also issued an executive order barring contractors from teaching certain “divisive concepts” in workplace diversity trainings that a federal court blocked.

The latter policy helped inspire a Florida law championed by Gov. Ron DeSantis (R) that the US Court of Appeals for the Eleventh Circuit struck down in March as a violation of private employers’ First Amendment rights.

Republican AGs and their Democratic counterparts highlighted their disagreement on DEI in dueling June 2024 letters to the American Bar Association, with the Republican attorneys urging the group to revise its policies to avoid encouraging law schools to consider race in admissions and hiring. Democrats countered that law schools and corporations alike can promote diversity without overstepping the Supreme Court’s 2023 affirmative action decision.

“Companies have wide latitude to ensure that their applicant pools are diverse and that their workplaces are equitable and inclusive. And companies have an obligation under Title VII to ensure that their workplaces are equitable,” Illinois AG Kwame Raoul wrote in the letter, cosigned by 18 other AGs.

Amalea Smirniotopoulos, senior policy counsel at the NAACP’s Legal Defense Fund, said her organization is concerned in Trump’s second term about “weaponization of civil rights agencies to target programs that are really trying to advance opportunity in this country.”

Other potential policy changes under Trump include eliminating the Equal Employment Opportunity Commission’s collection of race and gender data from private-sector workplaces, rolling back the use of disparate impact theories in enforcing anti-bias laws, and bringing claims against employers that allege their pro-diversity efforts amount to illegal discrimination, she said.

Despite facing a more conservative federal judiciary, AGs and others who challenge anti-DEI policies were bolstered by the Eleventh Circuit’s decision against the Florida law, said Shalini Goel Agarwal, special counsel at Protect Democracy who represented the plaintiffs in that case. The three-judge panel ruling against Florida included two Trump-appointed judges.

The court “pretty clearly said employers’ ability to talk about and effectuate DEI in the workplace is a First Amendment right,” she said.

State Coalitions

Multistate challenges are likely to be common in Trump’s second term as they were during Biden’s presidency and Trump’s first term, addressing policies ranging from immigration to education.

Bonta’s office has been planning with AGs from other states for months for potential legal challenges in the event of Trump’s re-election, he said.

State AGs doubled the 80 such cases filed during Barack Obama’s presidency in Trump’s first term, according to Nolette’s database. They remained active during Biden’s term, participating in more than 120 challenges primarily led by Republican AGs.

Tennessee AG Jonathan Skrmetti is leading coalitions of Republican AGs in challenging the EEOC’s recent workplace harassment guidance over its gender identity protections as well as a commission rule including abortion as a covered condition under a pregnancy bias law.

California Gov. Gavin Newsom (D) called state legislators into a special session beginning Dec. 2 to approve increased funding for the AG’s office to challenge Trump administration actions. In New York, Gov. Kathy Hochul (D) and Attorney General Letitia James also voiced plans to counter Trump policies that they see as infringing on New Yorkers’ rights.

Democratic AGs are likely to choose the most favorable court to file their litigation, Nolette said, aiming to persuade federal district judges to halt or delay executive orders or agency regulations.

The US District Court for the District of Massachusetts could be an active forum, he predicted, since appeals would go to the US Court of Appeals for the First Circuit and its majority of Democrat-appointed judges.

AGs can also protect workers’ rights through state-level enforcement of workplace laws, said Terri Gerstein, director of NYU’s Wagner Labor Initiative and former labor bureau chief for the New York AG’s office.

AGs are well-positioned for “filling any void or vacuum that exists as the federal government sort of retreats from strong enforcement of workers rights,” she said.

State legal chiefs also could pressure large companies to reach agreement on workplace protections, Nolette said.

“Given the economic power of many of the blue states, particularly California and New York, they’ll have some outsize influence there,” he said.