On July 29, 2025, Attorney General Pam Bondi issued a memorandum to all federal agencies discussing Diversity, Equity, and Inclusion (DEI) programs. More specifically, she outlined how agencies should regulate the activities of public and private employers who receive federal funds. In the memorandum, the Attorney General cited Titles VI and VII of the Civil Rights Act of 1964 (“Title VI” and “Title VII”), Title IX of the Education Amendments of 1972 (“Title IX”), and the Fourteenth Amendment’s Equal Protection Clause in support of her position that DEI programs are discriminatory and unlawful. The memo then offered examples of “pitfalls” that federal fund recipients should avoid to ensure their continued access to taxpayer dollars.
This memorandum from the Attorney General largely reiterates our understanding of how the Administration is interpreting various Executive Orders, and it represents an official commentary of specific practices while also cautioning at the outset that the contents of the memorandum are non-binding suggestions, not mandatory requirements for recipients of federal funds.
While the memorandum is specifically addressed to recipients of federal financial assistance, it is yet another statement of the Administration’s interpretation of federal employment laws. The principles are likely to be followed by the EEOC and other federal agencies that are interpreting civil rights laws, or EEO requirements in contracts.
Preferential Treatment
The Attorney General explained that employers should not provide “opportunities, benefits, or advantages to individuals or groups” based on protected characteristics, such as race, color, sex, national origin, or religion. By way of example, the memorandum cited race-based scholarships or programs, such as funds allotted solely for applicants of a certain race, as being illegal. Mentoring initiatives for which only individuals of a specific gender, racial group, or religion could partake would likewise run afoul of federal civil rights laws according to the Attorney General’s interpretation. This is consistent with the Administration’s position broadly extending the principles of SFFA v. Harvard into sectors beyond higher education, and further reflects a deviation from how past administrations have applied these same statutes.
The memorandum further noted that preferential hiring practices, where employers prioritize applicants for hiring or promotion based on protected characteristics, to the detriment of those who do not share said characteristics, are likely unlawful. That has always been understood to be illegal. Finally, the Attorney General explained that, when an employer designates a “safe space” or recreational room only for individuals sharing a common protected trait, this too is illegal, according to the Trump Administration.
Proxies
Under the Trump Administration’s updated guidance, employers should avoid the use of proxies when establishing selection criterion to receive opportunities or benefits. According to the memorandum, it is unlawful for an employer to try and circumvent federal civil rights laws, by, for example, asking job applicants to discuss their “cultural competency” or submit “diversity statements.” While these requests do not facially invoke protected characteristics, the Trump Administration believes that such efforts are merely DEI disguised as innocuous and neutral selection criteria, which are likely to be challenged in courts across the country.
As an example, the Attorney General explained that a university asking a faculty candidate “how their cultural background informs their teaching,” is a mere smoke screen for trying to establish the race or ethnicity of the applicant. The Administration believes that permitting proxies promotes facial neutrality, while behind the scenes, facilitating unlawful discrimination based on one of the protected characteristics discussed above. As such, proxies, like facial discrimination, are seen as unlawful to the Administration. Employers who facilitate the use of proxies could find their federal funding at risk under the Attorney General’s interpretation.
Segregation
In modern parlance, segregation occurs when employers organize “programs, activities, or resources . . . in a way that restricts access” based on protected characteristics. For example, employers should avoid creating separate trainings for employees of different racial or religious groups. Employers should likewise avoid creating workshops or programming which may only be attended by someone who identifies with a “specific racial or ethnic group.”
Functionally speaking, employers are not prohibited from facilitating workshops to enhance workplace morale or holding training sessions to improve productivity. That said, employers should ensure that, when they create such programming, all employees, regardless of race, ethnicity, gender, etc., receive an equal opportunity to sign up, attend, and participate. The Trump Administration believes that segregated workshops/trainings create “unequal treatment” and reinforce negative stereotypes about respective minority groups.
The memorandum established one specific carve out. Attorney General Bondi explained that “failing to maintain sex-separated athletic competitions and intimate spaces” could violate Title IX or create a hostile work environment under Title VII, according to the Administration’s interpretation of federal law. The full scope of the Administration’s gender carve out is unclear. Further guidance on the specifics of the carve out could provide the necessary clarity, and enforcement actions by the Administration will likely result in numerous legal challenges. Furthermore, the memorandum specifically provides that this guidance from the Attorney General “identifies ‘Best Practices’ as non-binding suggestions to help entities comply with federal antidiscrimination laws and avoid legal pitfalls; these are not mandatory requirements but rather practical recommendations to minimize the risk of violations.”
The Unlawful Use of Protected Characteristics
The memorandum explained that, in most contexts, the utilization and invocation of protected characteristics is inappropriate and unlawful. The Attorney General clarified that, in hiring and firing, promotion decisions, vendor agreements, and program participation, employers should take care to avoid utilizing any selection criteria that cites protected characteristics.
By way of example, the Trump Administration cautioned employers from setting quotas (such as requiring that a certain number of interview slots or contracts be given to minorities/minority owned businesses). The Administration also cited university internship programs; if a school requires that 50 percent of participants come from underrepresented minorities, this would, in the Administration’s eyes, violate federal antidiscrimination laws. This is not new. For a long time, such affirmative action quotas have been illegal, with narrow exceptions.
Training Programs
The Attorney General’s memorandum also took aim at employer training programs. More specifically, the Trump Administration believes that trainings that, for example, include language such as “all white people are inherently privileged,” are discriminatory. The Attorney General explained that such materials demean individuals based on their protected characteristics. Employers should remove inflammatory references that reinforce stereotypes based on protected characteristics. Failing to do so could prompt investigations or allegations that an employer is promoting a hostile work environment pursuant to Titles VI or VII.
Conclusion
The Attorney General’s memorandum disclosed the Administration’s “best practices,” which are meant to apprise employers on how they can ensure compliance with the Administration’s interpretation of federal civil rights laws. Employers and other recipients of federal financial funds should ensure that, when they develop criterion to receive opportunities or benefits, they weed out proxies for protected characteristics. Employers should focus on skills and qualifications in hiring, firing, promoting, or selecting grant/scholarship/contract recipients. Additionally, it is prudent for employers to document their legitimate rationales for any hiring, firing, or promotional decisions, so that in reviewing their actions later, the government (and involved parties) can see that the employer did not utilize a protected characteristic as the basis for a decision. Finally, employers should incorporate non-disclosure provisions in contracts with third parties, while also establishing safe and reliable anti-retaliation procedures, so that employees do not fear reporting unlawful discrimination.
The Trump Administration is embracing the “color-blind” Constitution and interpreting federal antidiscrimination laws in that same vein. Employers should take reasonable steps to evaluate their own policies and procedures in light of this guidance. They should likewise be prepared to defend such policies and procedures if challenged by the Administration.
