DOJ/EEOC memo puts DEI programs under new legal scrutiny

Attorney General Pam Bondi has issued a nine-page memorandum clarifying how federal antidiscrimination laws apply to diversity, equity, and inclusion (DEI) programs.

While the memo is framed as “guidance” for federal agencies and recipients of federal funds, it explicitly directs all entities subject to federal antidiscrimination laws – including private employers – to review their DEI programs for compliance.

The memo doesn’t change the law, but it signals how the DOJ and EEOC may interpret and enforce existing statutes like Title VI, Title VII, and Title IX. For employers, it offers a roadmap of practices most likely to draw scrutiny.

The four buckets of risk

The memo identifies four categories of potentially unlawful practices:

1. Preferential treatment based on protected characteristics: This category covers practices such as race-exclusive scholarships or internships, hiring preferences for “underrepresented groups,” or lounges designated only for certain racial or ethnic groups.
2. Use of proxies for protected characteristics: This category includes practices that don’t explicitly reference race, sex, or other protected traits but may still function as stand-ins. Examples include requiring “cultural competence” or “lived experience,” targeting recruitment to specific geographic areas, or mandating diversity statements. While often well-intentioned, these criteria may raise legal concerns if they result in treating applicants differently based on protected characteristics.
3. Segregation based on protected characteristics: This category could include organizing training sessions by race, creating “BIPOC-only” lounges, or requiring program participants to identify with a particular protected class. (The memo also stresses that failing to maintain sex-separated intimate spaces and athletic competitions could itself be unlawful.)
4. Training programs that promote discrimination or hostile environments: Here the memo includes mandatory trainings that stereotype employees (e.g., “all White people are privileged”) or penalize employees who refuse to affirm certain viewpoints.

DOJ’s recommendations

Although the memo is clear about what not to do, it also provides “non-binding” recommendations:

• Ensure all programs are open to all qualified individuals.
• Focus on measurable skills and qualifications.
• Eliminate diversity quotas and demographic benchmarks.
• Document nondiscriminatory rationales for hiring or selection criteria.
• Include nondiscrimination clauses in contracts with third parties.
• Prohibit retaliation against employees who oppose or refuse to participate in potentially discriminatory programs.

What it means for employers

For private employers, the immediate takeaway is that DEI initiatives should be reviewed through a compliance lens. The memo itself is not new law, but it signals where enforcement attention may land.

Employers may want to begin by auditing their DEI programs to identify any policies that explicitly, or even indirectly, rely on protected characteristics.

The bottom line is that the DOJ/EEOC memo doesn’t abolish DEI, but it narrows the lane. Employers who continue to emphasize inclusion will need to do so without crossing into practices that rely on or even appear to rely on protected characteristics.