Upon her swearing in on February 5, 2025, Attorney General Pam Bondi issued a series of memoranda to all Department of Justice employees, including a memorandum entitled “Ending Illegal DEI and DEIA Discrimination and Preferences” (DEI Memorandum). The DEI Memorandum builds upon and goes beyond President Trump’s recent DEI-focused Executive Order, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (EO 14173), by evoking the specter of criminal prosecutions to enforce federal anti-discrimination laws.
In the DEI Memorandum, AG Bondi directed DOJ’s Civil Rights Division to “investigate, eliminate, and penalize illegal DEI and DEIA [diversity, equity, inclusion, and accessibility] preferences, mandates, policies, programs, and activities in the private sector and in educational institutions that receive federal funds.” The DEI Memorandum dovetails with and cross-references EO 14173 and introduces a new enforcement tool not explicitly referenced in the EO – criminal prosecutions of private sector entities allegedly engaged in illegal DEI activities.
Executive Order 14173
President Trump issued EO 14173 on January 21, 2025. In commentary published since then, Hogan Lovells has analyzed various aspects of the EO, including the reversal of requirements for federal contractors to implement certain affirmative action programs,1 the targeting of private-sector DEI initiatives,2 and potential civil liability under the False Claims Act for federal contractor and grantee DEI programs.3
The EO directs the Attorney General within 120 days – or by approximately May 21, 2025 – to prepare a report, in consultation with agency heads and the Director of the Office of Management and Budget, containing “recommendations for enforcing federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.” The Attorney General’s report is to contain a “proposed strategic enforcement plan,” which, among other things, requires:
A plan of specific steps or measures to deter DEI programs or principles (whether specifically denominated “DEI” or otherwise) that constitute illegal discrimination or preferences. As a part of this plan, each agency shall identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars[.]
DEI Memorandum
Attorney General Bondi’s DEI Memorandum applies to the private sector and educational institutions that receive federal funds. Neither the EO nor the DEI Memorandum define what the administration believes is “illegal DEI,” and thus employers must look to existing anti-discrimination law to make that determination. The DEI Memorandum explains in a footnote, however, that its focus is on “programs, initiatives or policies that discriminate, exclude, or divide individuals based on race or sex[,]” and that the DEI Memorandum “does not prohibit educational, cultural, or historical observances – such as Black History Month, International Holocaust Remembrance Day, or similar events – that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.” It is still unknown how broadly the government will interpret that footnote.
The first section of the DEI Memorandum imposes directives on DOJ that are consistent with EO 14173. By March 1, 2025, DOJ’s Civil Rights Division and Office of Legal Policy must jointly submit a report to the Associate Attorney General containing “recommendations for enforcing federal civil rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including policies relating to DEI and DEIA.”
DOJ’s report must address a number of topics, many of which closely mirror those required for inclusion in the Attorney General’s report mandated by EO 14173. A new requirement imposed on DOJ by the DEI Memorandum, however, is that its report include “proposals for criminal investigations” – in addition to “up to nine potential civil compliance investigations” of the types of private entities enumerated in EO 14173, such as publicly traded corporations.
The second section of the DEI Memorandum directs DOJ to work with the Department of Education to provide guidance consistent with Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023), to educational institutions that receive federal funds. The Attorney General further instructs DOJ’s Civil Rights Division to “pursue actions” relating to “the measures and practices required to comply with Students for Fair Admissions.”
Looking Ahead
As noted above, the DEI Memorandum goes beyond EO 14173 by evoking the specter of criminal prosecutions to enforce federal anti-discrimination laws. The Civil Rights Division frequently pursues civil enforcement of federal laws protecting individuals from discrimination and violations of their civil rights, but it also has the authority to pursue criminal charges.
The Criminal Section of DOJ’s Civil Rights Division historically has relied upon 18 U.S.C. § 241 (civil rights conspiracy) to prosecute those who conspire to violate another’s civil rights. Section 241 is broadly worded to prohibit “two or more persons conspir[ing] to injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States[.]” Section 241 is generally understood to require specific intent to violate a federally protected right. It remains to be seen what criminal investigations DOJ’s Civil Rights Division may pursue against private sector entities alleged to have engaged in illegal DEI activities.
Hogan Lovells has deep experience advising private enterprises on these issues and defending them when lawsuits or investigations arise, including in DEI-related enforcement actions by DOJ’s Civil Rights Division during the first Trump Administration. We regularly advise clients on how to pursue their DEI goals lawfully, while keeping litigation and investigation risk to a minimum.
Attorney General Bondi’s DEI Memorandum is yet another reason why it would be prudent, if your organization hasn’t done so already, to inventory your DEI policies and programs, conduct a privileged audit of each policy and program, update those policies and programs to mitigate DEI risks, and prepare for potential investigations and disputes.
References
1 New Executive Order Ends Contractor Race and Sex Affirmative Action Obligations and Targets Employer DEI Efforts (Jan. 23, 2025), available at https://www.hoganlovells.com/en/publications/new-executive-order-ends-contractor-race-and-sex-affirmative-action-obligations-and-targets-employer.
2 Trump Executive Order Targets Private-Sector DEI Policies and Practices (Jan. 27, 2025), available at https://www.hoganlovells.com/en/publications/trump-executive-order-targets-privatesector-dei-policies-and-practices.
3 Executive Order Seeks to Impose FCA Liability for Contractor and Grantee DEI Programs (Feb. 11, 2025), available at https://www.hoganlovells.com/en/publications/executive-order-seeks-to-impose-fca-liability-for-contractor-and-grantee-dei-programs
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