The U.S. Department of Justice (DOJ) has set its sights on diversity, equity, and inclusion (DEI) programs, signaling heightened enforcement risks for employers. In a memorandum, Attorney General Pam Bondi directed the DOJ to investigate and penalize DEI initiatives that discriminate on the basis of race or sex.
The memorandum comes on the heels of President Trump’s executive order aimed at ending “illegal DEI” in workplaces across America. In a prior alert, we noted that the executive order’s primary aim is to end DEI and affirmative action obligations that federal contractors and subcontractors have, but also encourages private-sector employers to end their own voluntary DEI programs.
As Bondi’s memo notes, the President’s executive order instructs DOJ to report on its enforcement strategy by March 1, 2025. As a result, employers should act now to assess potential exposure and consider whether it's necessary to take any proactive steps now to mitigate risk.
Companies—particularly federal contractors, publicly traded corporations, large nonprofits, and educational institutions—face growing legal risks, including:
- DOJ Investigations: The agency has pledged to identify “egregious offenders” and initiate both civil and criminal investigations into DEI-related employment practices.
- Potential Lawsuits: Employees may challenge hiring and promotion decisions under Title VII, arguing that DEI policies result in race- or sex-based discrimination.
- False Claims Act Liability: Federal contractors that falsely certify compliance with the executive order’s DEI restrictions could face penalties under the civil False Claims Act.
What Employers Should Do Now
- Review DEI Policies: Audit hiring, promotion, and training programs to assess compliance risks.
- Document Justifications: Ensure any diversity initiatives are legally sound and based on permissible business considerations.
- Seek Legal Guidance: Given the evolving landscape, employers should consult with experienced employment counsel to navigate compliance challenges.
The DOJ’s focus extends beyond federal contractors, reaching private-sector employers, educational institutions, and other organizations with active DEI programs. While Bondi’s memo notes that cultural and historical observances—such as Black History Month and Holocaust Remembrance—are explicitly excluded from the DOJ’s investigations, the broad scope of enforcement remains unclear.
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