DoJ Signals Crackdown on DEI Programs

The Department of Justice announced that it will consider conducting criminal and civil investigations against companies with diversity, equity, and inclusion policies in place. This announcement came from a memorandum released by Attorney General Pam Bondi.

The memo states that its purpose is 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 or similar events that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination

According to the memo, the “DoJ’s 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 memo additionally instructs the Civil Rights Division and Office of Legal Policy to jointly submit a report containing recommendations or 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.

Specifically, the report should address the following:

• Key sectors of concern within the Department’s jurisdiction;
• The most egregious and discriminatory DEI and DEIA (“A” stands for accessibility) practitioners in each sector of concern
• A plan including specific steps or measures to deter the use of DEI and DEIA programs or principles that constitute illegal discrimination or preferences, including proposals for criminal investigations and for 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; and
• Additional potential litigation activities, regulatory actions, and sub-regulatory guidance; and
• Other strategies to end illegal DEI and DEIA discrimination and preferences and to comply with all federal civil-rights laws.

AG Bondi’s memo follows President Trump’s executive order, titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” that is purposed to eliminate any DEI policies within the federal government that violate anti-discrimination law as well as encourage those in the private sector to end illegal DEI discrimination and preferences.

Companies must Reexamine Their DEI Policies 

Due to the expected prioritization of anti-DEI enforcement, many companies are now reassessing their DEI programs to analyze whether its program is compliant while others continue to stand by their DEI policies.

Given the expected civil and criminal investigations, many companies such as Amtrack, Lowe’s, and Harley-Davidson announced that it would no longer allocate money and other resources to its DEI program. These companies are now examining their policies to determine whether they are legally compliant.

Although DoJ anti-DEI enforcement is  expected to increase, the DoJ’s actions pertaining to the memo will likely face legal analysis as courts have typically upheld employers’ rights to promote DEI. While the DOJ is optimistic that the Supreme Court’s decision in Students for Fair Admissions v. Harvard, which struck down affirmative action, provides a sufficient basis for issuing this memo, its validity remains to be seen.