U.S. Attorney General Pam Bondi recently issued new guidance aimed at clarifying the current administration’s stance on the permissibility of diversity, equity and inclusion policies and procedures under federal anti-discrimination laws such as Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments Act of 1972 – particularly among entities that receive federal funding, such as schools, universities, state and local governments, health care providers, nonprofits and other private employers.
In its guidance, the Department of Justice emphasizes that programs relying on protected characteristics as a basis for hiring, promotions, scholarships, internships, contracting or access to resources are generally prohibited unless they satisfy narrow judicial exceptions. The memo outlines what the DOJ considers “unlawful discriminatory policies and practices,” including the following non-exhaustive examples:
- Race-based scholarships, mentorships, fellowships and other programs;
- Preferential admission, hiring or promotion policies;
- Policies that restrict access to facilities or resources based on race or ethnicity, such as racially designated “safe spaces” or BIPOC (Black, Indigenous, and People of Color)-only study lounges;
- Race-based training programs, including trainings that stereotype individuals based on their protected characteristics, such as programs that reference “white privilege” or “toxic masculinity” or require participants to separate into race-based groups;
- Limited eligibility programs, such as DEI-focused workshops or events that mandate sex-specific eligibility requirements;
- “Diverse slate” hiring practices, such as those that require a minimum number of candidates for a program or position to be from specific racial groups;
- Sex-based selection preferences, such as policies that prioritize awarding contracts to women-owned businesses;
- Allowing transgender employees or students to share intimate facilities with members of the opposite biological sex; and
- Allowing transgender females to compete in female athletic competitions.
The guidance further warns against “proxy discrimination,” where facially neutral criteria, such as “cultural competence” requirements, “lived experience” narratives or geographic targeting are chosen or applied in ways that function as proxies for protected traits, such as race or gender.
The memo warns that such unlawful policies or practices could result in revocation of federal grant funding and notes that recipients of federal grant funds may be liable if the funds are used to support such initiatives run by contractors, grantees or other third parties.
The DOJ pairs these warnings with a series of “non-binding best practices” to help organizations ensure compliance with its policy interpretations. These include:
- Opening all programs, trainings and resources to qualified individuals regardless of protected characteristics;
- Basing selection decisions on specific skills and qualifications directly related to job performance or program participation, rather than criteria related to socioeconomic status “first-generation” status, or geographic diversity – though universally applicable criteria, such as “financial hardship,” can be permissible;
- Documenting legitimate selection rationales unrelated to race, sex or other protected characteristics in hiring, promotion and contract awards;
- Eliminating diversity quotas and “diverse slate” mandates;
- Auditing “facially neutral” selection criteria to ensure they do not serve as “unlawful proxies”;
- Including nondiscrimination clauses in contracts with third parties, such as grant agreements, contractors and partnership agreements and actively monitoring third-party compliance; and
- Establishing anti-retaliation policies and safe reporting channels.
In light of the new DOJ guidance, entities that receive federal funding should evaluate their current policies and practices to ensure compliance with federal anti-discrimination law and avoid costly litigation and/or the loss of federal funding. Such entities should also consult with legal counsel regarding these matters – particularly where compliance with the DOJ memo’s directives could violate state or local anti-discrimination laws.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
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