Committee advances bill that would bar public employers, including LEAs, from using DEI in hiring; legal counsel flags unclear language

House Bill 622, sponsored by Representative Jerome Mayberry, advanced out of the Tennessee House Calendar & Rules Committee after extended debate and a staff-recommended clarifying amendment. The bill would prohibit state, county, municipal and local governments, local education agencies (LEAs) and public higher-education institutions from making hiring decisions based on diversity, equity and inclusion (DEI). The committee recorded a final vote of 10 ayes, 4 nays and 3 present not voting.

The bill's sponsor said the measure "prohibits state, county, municipal, and local governments, LEAs, and public higher education institutions in Tennessee for making hiring decisions based on diversity, equity, and inclusion. The bill mandates that hiring decisions must be solely based on merit, focusing on qualifications, experience, and skills." Representative Mayberry said he had received complaints from professors, community members and elected officials who told him they had experienced discriminatory hiring practices.

Opponents and several committee members pressed the sponsor and legal counsel about the bill's language. Representative Glenn asked, "Do you really think we can eradicate racism with the stroke of a pen?" and raised concerns about whether the bill misunderstands the purpose of DEI programs. Representative Johnson, a former educator, cautioned committee members not to conflate DEI with affirmative action and said DEI practices are intended to ensure employees from different backgrounds are respected and included.

Legal counsel Katie Robertson told the committee the bill does not define "demographic characteristic," and that the term can encompass many statistical characteristics of populations, such as age, race, place of residence, education level and occupation. Robertson said the statutory language is ambiguous about whether an LEA could consider an applicant's education level, noting that the bill's subsection reads: "An LEA shall not base an employment decision on any metric that considers an applicant's or an employee's race, ethnicity, sex, age or any other demographic characteristic rather than on individual merit, qualifications, veteran status or lawful eligibility criteria." Robertson said, "Based on that language, it's unclear if the LEA would be able to look at an education level." She warned that a court could be asked to interpret the statute if it becomes law.

Committee members gave multiple examples of possible consequences from the uncertain language: whether veteran preference, education level for teachers, residency requirements for first responders, or nepotism rules would be affected. Representative McKenzie asked whether a location-based hiring preference (for example, hiring first responders who live within a given radius) might be caught by the provision; Robertson replied that "it is possible" location could be considered a demographic characteristic but noted that "lawful eligibility criteria" is not defined in the bill.

To address the drafting concerns, Chairman Sopiki moved a verbal amendment to insert the word "similar" before the phrase "demographic characteristic" wherever it appears in the bill; Sopiki said the amendment would read "similar demographic characteristic." After a point-of-order and consultation with the clerk and parliamentarian, the committee voted on the verbal amendment. The clerk recorded 12 ayes, 4 nays and 1 present not voting; the chair stated the verbal amendment carried and was adopted.

Several members urged the sponsors to add a statutory definition for "demographic characteristic" to avoid future litigation. Representative Barrett noted it is "best practice" to define unclear terms in legislation so courts do not have to interpret them after passage; legal counsel concurred that defining unclear terms reduces the risk of later litigation.

Representatives who oppose the bill said it risks undoing programs intended to expand opportunity for groups that historically were excluded from hiring, citing the Rooney Rule in professional football as an example of policies used to expand hiring diversity. Representative Resmaa Hakim and others argued written protections and targeted outreach historically produced changes in hiring practices.

Representative Mayberry, in defending the bill, said his aim is to prohibit discrimination and require merit-based hiring, and that the bill does not oppose diversity when it occurs "naturally through fair hiring practices." He said he had received documentation from individuals who told him they had been passed over in hiring because of DEI goals and said those accounts motivated the bill.

After adopting the verbal amendment, the committee voted to advance House Bill 622 to the next stage; the clerk reported 10 ayes, 4 nays and 3 present not voting. Committee members were told the bill is now in the possession of the education committee (where relevant sections affect K–12 and higher education) and may be referred further under the rules for calendar and rules committee business.

The committee adjourned "subject to the call of the chair" after the vote.