On February 5, 2025, the newly sworn U.S. Attorney General, Pamela Bondi, issued a Memorandum to U.S. Department of Justice (DOJ) Employees entitled “Ending Illegal DEI and DEIA Discrimination and Preferences.”
The Memorandum relies on President Trump’s January 21 Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which states that policies relating to diversity, equity, and inclusion (DEI) and diversity, equity, inclusion, and accessibility (DEIA) “violate the text and spirit of our longstanding Federal civil-rights laws” and “undermine our national unity.”
In accordance with this statement of the administration’s policy, the Memorandum states, the DOJ Civil Rights Division 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.” The Memorandum concludes with two points of action:
- By March 1, 2025, the DOJ Civil Rights Division and the Office of Legal Policy must submit a joint report including recommendations for enforcing 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.” The report must specifically address, among other things, “[t]he most egregious and discriminatory DEI and DEIA practitioners in each sector of concern;” a plan to deter the use of DEI or DEIA that “constitute[s] illegal discrimination or preferences,” including proposals for criminal and civil compliance investigations; and additional litigation measures.
- The DOJ is to work with the Department of Education to “issue directions” to educational agencies, colleges, and universities regarding the measures and practices the federal agencies determine are required to comply with the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 206 (2023). The Civil Rights Division of the DOJ is also directed to “pursue actions” regarding this initiative.
The practical impact of this Memorandum remains to be seen. However, it is likely that this Memorandum could be subject to legal challenge or other intervening measures. An existing lawsuit takes aim at Executive Order 14173, the Executive Order referenced in the Memorandum.
Employers should continue to work with legal counsel to stay up to date on compliance measures.
