Employers take note: The Department of Justice (“DOJ”) just released new guidance clarifying the application of federal antidiscrimination laws to Diversity, Equity and Inclusion (“DEI”) programs for federal funding recipients. While geared toward federal funding recipients, all employers should take note of the current administration’s position on DEI practices and programs.

The guidance emphasizes that using terms such as “DEI,” “Equity” or other similar terms does not absolve a party from scrutiny, and that, even under a stated intent to diversify a workplace, it is unlawful to use race, sex, or other protected characteristics for employment decisions. Individuals are also protected from adverse actions (including termination) based on their refusal to participate in unlawful, discriminatory programs.

The guidance provides a long list of practices it deems to be unlawful, including but not limited to the following:

  • Adopting a DEI policy that prioritizes hiring and/or promoting candidates from “underrepresented groups,” where those groups are determined on the basis of a protected characteristic such as race.
  • Adopting facially neutral policies that are intended to advantage individuals based on protected characteristics, such as using geographically targeted recruitment strategies intended to target individuals of certain racial or ethnic backgrounds rather than other legitimate factors.
  • Hosting DEI training sessions that require participants to separate into race-based groups, or that through their content, structure, or implementation stereotype, exclude, or disadvantage individuals based on protected characteristics or create a hostile environment (e.g., singling out, demeaning, or stereotyping individuals based on protected characteristics).
  • Hosting DEl-focused workshop series that requires participants to identify with a specific racial or ethnic group (e.g., “for underrepresented minorities only”) or mandates sex specific eligibility, effectively excluding others who meet objective program criteria.
  • Adopting a policy that requires a certain number of candidates for a position to come from a specific racial group.

Employers should continue to evaluate their DEI programs with counsel to ensure they comply with all federal, state and local anti-discrimination laws.

Read the full Guidance here:
Memo from Attorney General Bondi: Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination