On February 5, 2025, newly confirmed U.S. Attorney General Pam Bondi issued a memo to all U.S. Department of Justice Departments targeting private employers’ use of DEI initiatives. The memo is titled “Ending Illegal DEI and DEIA Discrimination and Preferences.” In it, AG Bondi states that the DOJ will “investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector and in educational institutions that receive federal funds.” As a legal basis for such action, AG Bondi cites to the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 206 (2023), which held that the college and university Defendants’ affirmative action programs violated the promises of equal protection under the U.S. Constitution. Despite the case not directly applying to Title VII, the quote relied upon by AG Bondi from that case is “eliminating racial discrimination means eliminating all of it.” This tracks President Trump’s recent Executive Orders targeting DEI and framing such programs as discriminatory in nature.
AG Bondi’s memo sets a deadline of March 1, 2025, for the DOJ’s Civil Rights Division and Office of Legal Policy to jointly submit a report outlining 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.” For educational institutions that receive federal funds, AG Bondi’s memo states that they “may not treat students worse than others in part because of race” and cites to Justice Gorsuch’s concurring opinion in Students for Fair Admissions.
While the fear of DOJ investigations and enforcement is justified for private employers, AG Bondi’s memo contains a critical footnote clarifying the actual scope of the memo. The footnote states, in its entirety:
This memorandum is intended to encompass programs, initiatives, or policies that discriminate, exclude, or divide individuals based on race or sex. It 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.
This footnote is important as it reinforces what should already be the standard practice. Prior to the second Trump Administration, DEI initiatives never meant to – and were not legally allowed to – discriminate or create division. Any DEI policy that did so was vulnerable to legal challenges under existing law. Employers with such policies could face “reverse discrimination” claims if benefits, promotions, or opportunities were withheld from an individual based on race or sex or any protected category. Additionally, private employers have constitutionally protected speech rights, meaning the federal government has never had the authority to restrict private employers’ “observances… that celebrate diversity, recognize historical contributions, and promote awareness.” Neither AG Bondi’s memo nor any Executive Order issued by President Trump can independently change that. Accordingly, all federal, state and local laws prohibiting discrimination and promoting DEI remain in full force and compliance is mandatory. However, due to the conflicting narratives, it is crucial that private employers work closely with their employment counsel to address any potential conflicts between existing laws and recent Executive Orders.
The Bottom Line
Private employers who have already ensured their DEI programs comply with existing law and do not engage in “illegal” discrimination are unlikely to be affected by AG Bondi’s memo. However, as the Trump Administration’s focus on DEI continues, private employers should review their initiatives carefully to ensure they do not involve “exclusion or discrimination.”
