Recently confirmed U.S. Attorney General Pam Bondi sent a slew of memos to Department of Justice (DOJ) attorneys laying out new DOJ policies and priorities on Wednesday evening. Among them is a memo targeting diversity, equity, inclusion and accessibility (DEI and DEIA) in the private sector and outlining plans to investigate, eliminate and penalize private enterprises found in violation of federal civil rights laws.
The memo, titled “Ending Illegal DEI and DEIA Discrimination and Preferences,” is a companion to President Donald Trump’s Executive Order 14173 repealing affirmative action requirements for federal contractors originally signed by President Lyndon Johnson. In it, Bondi cites the Supreme Court’s 2023 Students for Fair Admission ruling that declared affirmative action in student admissions unconstitutional. The new memo also warns universities that receive federal funds that the DOJ will take steps to ensure compliance with the precedent. Click here to read our prior alert on the order.
Bondi directs the Civil Rights Division and the Office of Legal Policy to compile a report by March 1 of recommendations to “encourage the private sector to end illegal discrimination and preferences, including policies relating to DEI and DEIA.” As directed, the report is supposed to include “sectors of concern” within the DOJ’s jurisdiction and “the most egregious and discriminatory DEI and DEIA practitioners” in each of those sectors of concern. Bondi called out “programs, initiatives, or policies that discriminate, exclude, or divide individuals based on race or sex” as running afoul of civil rights laws. She clarified, however, that “educational, cultural, or historical observances—such as Black History Month, International Holocaust Remembrance awareness” pass muster so long as they are not exclusionary or discriminatory.
The memo does not specify what steps the DOJ will take to eliminate offending programs in the private sector or how other government agencies that enforce civil rights laws, such as the U.S. Equal Employment Opportunity Commission, will be used in this effort. But it is clear that the DOJ will make use of both criminal and civil enforcement mechanisms to “deter DEI and DEIA programs that constitute illegal discrimination or preferences.” Section 4(b)(iii) of Trump’s executive order regarding federal contractors requires each federal agency to “identify up to nine potential civil compliance investigations” of publicly traded corporations, large nonprofit corporations or associations, foundations with assets of $500 million or more, state and local bar and medical associations, and institutions of higher education with endowments over $1 billion.
Trump’s order ending affirmative action for federal contractors signaled to private employers that any DEI programs were on suspect legal ground, and Bondi’s Feb. 5 memo confirms that employers’ DEI programs will face enhanced scrutiny. While the ramifications of the memo and the executive order are not yet clear, lawsuits challenging these practices are inevitable. Regardless of how these challenges play out in court, private companies should be aware of possible government investigations over unlawful diverse hiring practices. Reach out to one of the authors for questions about navigating the rapidly changing legal landscape around diverse hiring and retention programs.
