On January 19, 2026, the Attorneys General of Florida and Texas issued separate but thematically aligned legal opinions addressing Diversity, Equity, and Inclusion (DEI) initiatives. These opinions assert that many race-based affirmative action measures in public contracting and private employment may constitute unlawful discrimination under federal and state law.
While Attorney General opinions generally serve as instructions for state agencies rather than binding court rulings for private businesses, they signal a significant shift in enforcement priorities. For employers in these states, the message is clear. The legal risks associated with race-conscious initiatives, from supplier diversity to executive compensation, have escalated.
Below are a summary of the opinions and the specific implications for employers.
Florida: Nullification of “Underrepresentation” Goals
Florida Attorney General James Uthmeier’s opinion concludes that numerous state statutes requiring race-based state action are presumptively unconstitutional. Relying on the U.S. Supreme Court’s decision in Students for Fair Admissions v. Harvard, the AG’s office stated it will no longer defend or enforce laws that mandate race-based discrimination.
Key Impacts
- Government Contracting. The opinion effectively nullifies the mechanism by which state agencies award contracts based on minority “underrepresentation.” This signals a strict pivot to “merit-based” procurement, where contracts are awarded solely on price and capability rather than demographic preference points.
- Warning to Private Sector. The legal reasoning suggests that private workplace practices mirroring these state mandates, such as rigid hiring quotas or race-conscious contracting, could face scrutiny under the Florida Civil Rights Act.
Texas: HUB Programs and Private Sector Risks
Texas Attorney General Ken Paxton issued Opinion No. KP-0505, explicitly targeting both public sector “Historically Underutilized Business” (HUB) programs and private sector DEI practices. Overruling a prior 1999 opinion, AG Paxton declared that frameworks defining eligibility or goals based on race or sex fail strict scrutiny.
Key Impacts
- Public Contracting. The opinion argues that establishing “goals” to resolve underrepresentation is unconstitutional. Consequently, public agencies may stop enforcing “good faith effort” requirements for minority subcontracting.
- Private Sector Warnings. Uniquely, this opinion explicitly warns private employers that common DEI practices may trigger liability under Title VII and Section 1981 (which guarantees equal rights to make contracts). Specific high-risk practices identified include:
- Demographic hiring targets or “diverse slate” policies.
- Tying executive compensation or bonuses to DEI metrics.
- Internships or fellowships open only to specific demographic groups.
- Employee Resource Groups (ERGs) that exclude individuals based on race or sex.
- Training programs that could be construed as creating a hostile work environment or assigning collective guilt.
The Central Implication: A Move to Merit-Based Decisions
These opinions underscore a growing legal trend challenging race-conscious employment and contracting practices. The central implication is that all decisions, whether awarding a vendor contract, hiring a new employee, or calculating an executive bonus, should be based on individual merit and qualifications rather than immutable characteristics or group “underrepresentation.”
Next Steps for Employers
To navigate this evolving environment, employers in Florida and Texas (and those with multi-state operations) should consider the following actions:
- Audit Contracting and Procurement: Employers that bid on state contracts do not rely on minority-owned business certifications (MBE/WBE) as a competitive differentiator, as preference points may no longer apply. Private suppliers should also ensure their own supplier diversity initiatives focus on outreach and barrier reduction rather than quotas or set asides.
- Review Internal DEI Policies: Review policies to ensure they do not mandate quotas or “diverse slate” requirements based on protected characteristics. If your organization ties executive bonuses to specific demographic representation targets, consult with counsel immediately. Evaluate training materials to ensure they focus on non-discrimination without stereotyping, and ensure ERGs are open to all employees.
- Consult Legal Counsel: Because these opinions involve complex interpretations of constitutional law, seek advice from labor and employment counsel to determine how these developments specifically affect your organization’s risk profile.
How HR Works Can Help
HR Works offers tailored services to ensure your organization remains compliant while aligning with your values and workforce needs.
- Policy & Program Review: Evaluate affirmative action programs and analyses, DEI programs, workplace policies, and training initiatives to ensure compliance with federal directives while addressing state and local protections.
- Compliance Assistance: Provide policy guidance to align with federal mandates while adhering to local and state laws. Perform comprehensive HR assessments to ensure compliance with applicable laws and best practices.
- Strategic Guidance: Address conflicts between federal, state, and local laws with practical compliance strategies. Develop clear communication plans to explain policy changes and reinforce your organization’s commitment to inclusion and fairness.
Current HR Works clients may contact their designated HR or AA/EEO consultant for additional information. Virtual Helpline clients may contact the Virtual Helpline for additional guidance and support.
Not an HR Works Client?
At HR Works, we specialize in helping employers confidently navigate complex regulatory landscapes. Our expertise ensures your organization remains compliant while fostering an inclusive, respectful workplace.
To learn more about how HR Works can help you, contact us today.
