Randy Evans is executive director of the Iowa Freedom of Information Council, a nonpartisan, nonprofit organization that promotes openness and transparency in Iowa’s state and local governments. He can be reached at DMRevans2810@gmail.com.

Iowa Attorney General Brenna Bird again tried to put herself in the national spotlight last week as leader of a group of Republican attorneys general who fixed their sights on Costco over the warehouse retailer’s diversity, equity, and inclusion (DEI) policies.

The state attorneys sent a stern warning letter telling the company, “We … urge Costco to end all unlawful discrimination imposed by the company through diversity, equity and inclusion (“DEI”) policies. … Costco should treat every person equally and based on their merit, rather than based on divisive and discriminatory DEI practices.”

The letter came about the same time as 98 percent of Costco’s shareholders voted against a proposal to cut the company’s DEI statements. The vote puts Costco executives in a tight spot of serving the wishes of shareholders or acquiescing to Bird and her friends.

Bird’s office issued a press release with the letter, quoting her saying, “It’s time to ditch DEI. While other companies right the ship and abandon their illegal, woke policies, Costco has doubled down. I’m putting Costco on notice to do the right thing and eliminate discriminatory DEI. No American should be denied an opportunity because they don’t fit the woke mold.”

During an appearance on a Fox News program, Bird said, “Costco needs to show us the proof that they are following the law because they have public statements that cause us great concern. Many other big retailers have changed their policies and are now following federal law, just like President Trump is doing with his executive orders rooting out DEI.”

Irony abounds considering this comes from a lawyer who touts her prosecutorial experience, where those accused of wrongdoing are presumed innocent. And it comes from an administrator who should know the burden of proving non-compliance with employment laws rests on the government, not the employer.

Even so, Bird said Costco executives and directors “need to make sure they’re actually doing the right thing here. That’s what we’re keeping an eye on, and if they don’t, we’ll look at all available options.”

You do not need a bunch of red MAGA caps hanging in your closet to know what “all available options” means in Bird’s eyes. But not all legal scholars share the conclusions asserted by these attorneys general. 

Plus, those not wearing MAGA caps might wonder if Iowa’s attorney general has bigger issues closer to home, considering Costco only has four stores in the state (in Ankeny, Coralville, Davenport, and West Des Moines). Some Iowans might wonder when we can expect Attorney General Bird to issue similar “we expect you to follow the law — or else” warnings to businesses with a larger presence in our state and demand they send her proof of their compliance.

Those warnings might include putting companies like CRST or Heartland Express on notice that Bird will “look at all available options” if their trucks break the speed limit or exceed weight limits. 

Or Bird might warn Iowa Select Farms that she will “look at all available options” if the hog confinement company’s animals end up polluting Iowa rivers, lakes, and drinking water.

Will Bird put the fear of God into the owners of Iowa nursing homes, such as Care Initiatives and Aspire/Beacon Health, that she and her staff will bring down the wrath of state government on them if they do not fully comply with regulations designed to protect their residents?

Although Bird professes to be fair-minded, it is hard to imagine politics won’t influence her demands that certain corporations abandon policies she deems “woke.” 

Since taking office in 2023, Bird filed or joined other states in at least nine lawsuits challenging policies of the Biden administration. Now, with Biden gone and time on her hands, it appears Bird is turning her attention to businesses whose actions or internal policies do not square with the new president’s agenda.

Yet, anyone who steps into Iowa courtrooms knows passionate litigators present two or more sides to an issue. Just look at President Trump’s attempted executive order to cancel the constitutional amendment granting “birthright citizenship.”

It is the same with his and Bird’s attempt to stamp out diversity, equity and inclusion policies in business, not just government — even though such policies on their face seek equal treatment, rather than command discrimination, in hiring, pay, advancement or retention.

Husch Blackwell LLP, a Kansas City law firm with offices across the United States, recently sent a client alert to help employers stay on the right side of the dividing line between legal and unlawful corporate DEI policies.

The firm advised,

[T]he vast majority of DEI programs and policies currently utilized by most employers—which include employee resource groups, optional DEI and bias trainings, and strategies for diversifying candidate pools for recruiting purposes—would appear to fall well outside the definition of “illegal” practices under existing law. Indeed, the former chair of the EEOC [the U.S. Equal Employment Opportunity Commission] made clear in a 2023 press release that it “remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.”

Husch Blackwell told employers they can use lawful DEI programs, so long as they avoid quotas and focus their workplace initiatives on promoting inclusion without implementing discriminatory practices. The firm said employers should use a broad definition of diversity, “including age, veteran status, and life experience, not just race or gender.”

That brings us back to Bird, who seemingly wants it both ways.

To hear her, Costco should drop statements confirming a desire to have its workforce reflect the breadth of its communities, including the four it serves in Iowa.

Meanwhile, a job posting for an assistant attorney general position in the “Farm and Freedom Division” of the Iowa Attorney General’s office ends with this note: “The State of Iowa is an Equal Employment Opportunity/Affirmative Action Employer. All qualified individuals are encouraged to apply.”

Do you suppose Bird intends to follow affirmative action guidelines, even if her friends think they are woke?

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Editor’s note: On February 3, the Iowa Attorney General’s office announced that Iowa and seventeen other states states submitted a brief “defending President Trump’s executive order that restores the meaning and value of American citizenship.”

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Top image was first published on the Facebook page of the Iowa Attorney General’s office in March 2024.