Following a number of 2025 executive orders and combined guidance from the Equal Employment Opportunity Commission and the Department of Justice (DOJ) targeting diversity, equity, and inclusion (DEI) initiatives, a July 29, 2025, nine-page memorandum issued by Attorney General Pam Bondi provides more specific guidance on DEI initiatives by recipients of federal funding, and may impact private employer DEI initiatives going forward.
The memo “clarifies the application of federal antidiscrimination laws to programs or initiatives that may involve discriminatory practices, including those labeled as DEI initiatives” and provides practical recommendations in the form of “best practices.”
What does the memo say?
At first glance, the memo appears directed at federal agencies and recipients of federal funding. However, the memo, in unequivocal terms, also directs all entities subject to federal antidiscrimination laws, including private employers, to review and evaluate their DEI programs for compliance with federal law.
The memo outlines four general types of unlawful practices and provides, under each of the four categories, examples of unlawful practices:
- Preferential treatment based on protected characteristics
- Examples: race-based programs (including internships, mentorship programs, or leadership initiatives), preferential hiring or promotion practices, and restricting access to facilities or resources based on a protected class
- Using proxies for protected characteristics, i.e., using neutral criteria as a substitute for considering protected characteristics
- Examples: “cultural competence” requirements, geographic or institutional targeting, and requiring overcoming obstacles narratives or diversity statements as a tool for awarding positions or benefits
- Segregation based on protected characteristics, including using protected characteristics as selection criteria
- Examples: organizing training sessions based on protected characteristics, designating spaces for certain protected characteristics (not including “intimate spaces”), and determining eligibility for participation based on a protected characteristic
- Training programs that promote discrimination or hostile environments
- Examples: training programs that exclude or penalize individuals based on protected characteristics or use materials that single out, demean, or stereotype individuals based on protected characteristics
The memo goes on to provide recommendations on “best practices,” which include ensuring inclusive access, focusing on skills and qualifications, prohibiting use of demographic-driven criteria, documenting legitimate rationales, scrutinizing neutral criteria for proxy effect, eliminating diversity quotas, eliminating exclusionary training programs, requiring nondiscrimination clauses in contracts with third parties and monitoring compliance, and establishing anti-retaliation procedures and creating safe reporting mechanisms.
What does this mean for private employers?
At top, remember that the memo is not the law. However, the memo is the DOJ’s interpretation of existing law, which in today’s climate is fluctuating and could vary depending on the decisions from courts in the states where an employer or its employees are located. The memo also indicates the types of activities the DOJ will be scrutinizing and could lead to litigation related to such activities. Beyond that, the memo should prompt private employers to evaluate their initiatives, programs, or other activities that fall within the scope of the items addressed to determine compliance with federal, state, and local laws and, when needed, consult with counsel to navigate any concerns or conflicting legal requirements.
