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DOJ on DEI: Are Private Sector Diversity, Equity & Inclusion Programs Still Legal?
According to a memo issued to the DOJ from Attorney General Pam Bondi, by March 1, 2025, the Civil Rights Division and the Office of Legal Policy are to submit a joint report containing certain recommendations for enforcement and measures to encourage the private sector to “end illegal discrimination and preferences, including policies relating to DEI and DEIA.” Per Bondi – who has been tasked with developing the private sector enforcement plan – the report should address the key sectors of concern with the “most egregious and discriminatory DEI and DEIA practitioners in each sector of concern” identified.
What exactly constitutes “illegal” or “discriminatory” DEI policies has not been defined or clarified, but here are some of our predictions as to which companies will be targeted initially:
High profile companies with significant DEI programs, companies headquartered in “blue states,” and those that have openly taken a political stance against the administration.
Companies with federal government contracts and robust DEI programs.
Those who utilize the term “affirmative action” in their marketing materials.
Organizations that mandate DEI training.
Businesses with Chief Diversity Officers on their leadership team.
Those that consider race or gender when recruiting, hiring, or determining compensation as opposed to being solely merit-based.
We would suggest auditing your job postings, DEI initiatives and company policies to assess whether they are risky when considering the items above. Then, decide as a company whether you are comfortable with those risks and what kind of stance you would like to take in the face of these challenges.
While we do not see anything overtly prohibiting DEI-focused discussions or educational efforts*, we do believe the scrutiny of these programs is going to increase exponentially over the next 6 months and want folks to be prepared.
*The memo clarified that educational, cultural, or historical observances such as Black History Month, International Holocaust Remembrance Day, and similar events that celebrate diversity and promote awareness “without engaging in exclusion or discrimination” are not prohibited.