DOJ Elaborates on “Illegal” DEI in New Guidance

The U.S. Department of Justice released guidance this week for all recipients of federal funding regarding what the Trump administration considers unlawful DEI-related practices.

The bottom line: While the guidance is non-binding, the administration is almost certain to condition federal funding on compliance with this legal blueprint and is likely try to hold private employers to the same standards.

Unlawful practices outlined: The guidance identifies several DEI-related practices that the DOJ considers unlawful, including: 

• Exclusive programs based on protected characteristics, such as scholarships, mentorship, leadership initiatives, or other programs reserved for specific demographic groups.

• Use of proxies defined by the DOJ as seemingly neutral criteria (e.g., lived experience, geographic background, or cultural competence) that serve as stand-ins for protected traits.

• Diverse slate hiring policies that require, for example, a minimum number, percentage, or benchmark of candidates from underrepresented groups on interview slates for certain positions.

• Contractor diversity requirements that prioritize or give preference to third-party contractors or partners owned by individuals from underrepresented groups. 

Employer takeaways:

• The guidance is non-binding and therefore does not change the law. While the DOJ may consider certain practices unlawful, their legality will ultimately be determined in court by a judge (if at all).

• The administration will attempt to condition federal contracts on compliance with the guidance and may target private employers (including those that do not have federal contracts) for investigation and enforcement if they engage in any of the allegedly unlawful practices outlined in the guidance.

• Legal challenges are likely as it is not clear whether the administration has the legal authority to condition federal funding on compliance with such guidance.

• Consult legal counsel when making determinations of whether any single practice may be unlawful.

The Association is continuing to engage with the administration, including the EEOC and the DOJ, on DEI-related issues, and will continue to keep members informed of any developments. 

Read our full breakdown of DOJ’s guidance here.