Even when well-intentioned, DEI programs are not exempt from federal civil rights laws. That is the core message of Attorney General Pam Bondi’s memo clarifying the Department of Justice’s interpretation of federal antidiscrimination laws.
On July 29, 2025, Attorney General Bondi issued guidance clarifying her office’s interpretation of federal antidiscrimination laws (pdf), including Titles VI and VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and the Equal Protection Clause of the Fourteenth Amendment.
This guidance provides helpful examples of specific policies and practices this Administration would consider “unlawful DEI.”
Key Legal Principles and Red Flags
The memo reiterates that the use of a protected characteristic (race, color, national origin, sex, religion, etc.) as a basis for employment decisions is unlawful. It specifically targets practices that, even with a stated goal of diversity, may create a discriminatory outcome.
The guidance highlights the following areas as being at high risk for legal challenge:
Granting Preferential Treatment
Policies that prioritize candidates from “underrepresented groups” in hiring, promotion, or admission, thereby disadvantaging other qualified individuals are unlawful.
This includes race-based scholarships or programs (including access to facilities or resources) that are exclusive to a specific group, and policies that set aside a certain number of spots for individuals based on a protected characteristic.
Use of Unlawful Proxies
It is unlawful to use facially neutral criteria that are intentionally chosen to function as substitutes for an explicit protected characteristic.
Examples include:
- “Cultural competence” or “lived experience:” Criteria that, in practice, evaluate a candidate’s racial, ethnic, or sex-based background rather than objective skills.
- Targeted recruitment: Implementing recruitment strategies that target specific geographic areas, institutions, or organizations primarily due to their racial or ethnic composition.
- “Diversity statements:” Requiring applicants to submit a statement that gives an advantage those who discuss experiences tied to protected characteristics.
Segregation and Exclusionary Programs
Organizing programs, activities, or resources in a way that separates or restricts access based on race, sex, or other protected characteristics is unlawful.
Examples include:
- Race-based training sessions: Requiring employees to separate into groups based on race (e.g., “Black Caucus,” “White Ally Group”) for discussions or training.
- Segregated facilities or resources: Designating a “BIPOC-only” lounge, study space, or event venue. Even if access is technically open, the memo states the designation may create a perception of segregation and a hostile environment. The memo clarifies that sex-separated bathrooms, locker rooms, showers or dormitories are allowed and, in some cases, mandatory.
Demographic-Driven Candidate Selection
It is unlawful to use protected characteristics when choosing candidates. This includes “diverse slate” policies (requiring a minimum number of candidates from a specific racial or ethnic group or of a specific sex) and using race or sex as a tiebreaker in hiring or contract awards.
Discriminatory Training Content
Any training program that stereotypes, demeans, or disadvantages individuals based on a protected characteristic or creates a hostile environment and is unlawful. This includes content that requires participants to “confess” to personal biases or “White privilege” or makes broad, stereotypical statements about any race or sex.
DOJ’s Recommended Practices
Attorney General Bondi recommends conducting a comprehensive internal audit of all DEI, hiring, promotion, training, and scholarship programs with the following criteria in mind:
- Examine selection criteria: Review job descriptions, hiring criteria, and promotion rubrics to ensure they are based on objective, job-related qualifications, skills, and merit.
- Scrutinize “neutral” criteria: For any criteria that might correlate with a protected characteristic (e.g., “lived experience”), document a clear, legitimate, and non-discriminatory business rationale.
- Eliminate quotas and benchmarks: Immediately discontinue any policy that requires a certain demographic composition for candidate pools, interview slates, or final selections.
- Focus on evaluating and strengthening your recruitment pipeline to attract a broad, diverse range of qualified applicants, without resorting to discriminatory selection methods.
- Revise training programs: Review all DEI, anti-discrimination, and anti-harassment training content. Ensure programs are open to all employees regardless of protected characteristics.
- Modify or eliminate any content that assigns blame, stereotypes, or demeans individuals based on their race, sex, or other protected status.
- Strengthen anti-retaliation policies: The memo emphasizes the protection of individuals who raise concerns or refuse to participate in potentially discriminatory programs.
- Ensure your employee handbooks and codes of conduct clearly state a zero-tolerance policy for retaliation and provide confidential and accessible channels for reporting concerns.
Further Steps for Third-Party Contracts Involving Federal Funding
- Review existing contracts: Ensure all agreements with third-party vendors, grantees, or contractors that use federal funds contain an explicit nondiscrimination clause.
- Add new clauses: Going forward, all new contracts should include a clause specifying that federal funds cannot be used for discriminatory programs and that the third party will be monitored for compliance.
Recommended Action Plan for All Organizations
While this memo provides helpful guidance on how the administration will enforce federal civil rights law related to DEI, the application of these recommendations will need to be tailored to an organization’s particular workforce and business.
