DOJ Releases Updated DEI Guidance: Here’s What You Need to Know

Diversity, equity, and inclusion (DEI) polices in employment and academia have been a central focus of the second Trump administration’s civil rights enforcement efforts, including by the Department of Justice (DOJ) and the Equal Employment Opportunity Commission. In January, the president issued Executive Order 14173 outlining his administration’s position that many DEI policies amount to unlawful discrimination and directing federal agencies to promote “individual initiative, excellence, and hard work.” Now, the DOJ has released a memorandum (“Memo”) clarifying how the Trump administration plans to enforce federal antidiscrimination laws to DEI initiatives. The Memo has a number of implications for both employers and employees, which our Norfolk employment lawyers can discuss with you in more detail. 

Applicability 

The Memo is titled “Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination.” While the Memo is addressed to entities receiving federal funds, it notes that it also applies to “entities…that are otherwise subject to federal antidiscrimination laws, including educational institutions, state and local governments, and public and private employers.” As such, private-sector employers and state and local governments should also heed its guidance and, if necessary, update their employment policies and procedures in accordance therewith. 

Prohibited Practices 

The Memo highlights five practices that will now be considered unlawful under federal antidiscrimination law and provides examples of each: 

Granting Preferential Treatment Based on Protected Characteristics 

“Protected characteristics” under federal antidiscrimination law are race, color, religion, sex (including sexual orientation, gender identity, and pregnancy), national origin, age, disability, and genetic information. Traditionally, “discrimination” was often understood primarily to refer to adverse action against an employee based on one or more of those protected characteristics. The Memo clarifies that discrimination also includes “preferential treatment,” which occurs when a covered entity provides opportunities, benefits, or advantages to individuals or groups based on protected characteristics in a manner that disadvantages other qualified persons. 

Examples of unlawful preferential treatment include: 

• Race-based programs, e.g., race-exclusive internships, mentorship programs, or leadership initiatives
• Preferential hiring or promotion practices, e.g., prioritization of candidates from “underrepresented groups” for hiring or promotion
• Access to facilities or resources based on race or ethnicity, e.g., “safe spaces” or lounges exclusively for individuals of a specific racial or ethnic group

Use of Unlawful Proxies for Protected Characteristics 

The Memo explains that an unlawful proxy occurs when a covered entity uses ostensibly neutral criteria that function as substitutes for explicit consideration of protected characteristics. Such proxies are unlawful when (1) they are selected because they correlate with, replicate, or are used as substitutes for protected characteristics, or 92) they are implemented to advantage or disadvantage individuals based on protected characteristics. 

Examples of unlawful proxies include: 

• “Cultural competence” requirements, e.g., covered entities requiring job applicants to demonstrate “cultural competence,” “lived experience,” or “cross-cultural skills” in ways that effectively evaluate candidates’ racial backgrounds. 
• Geographic or institutional targeting, e.g., targeting due to the racial or ethnic makeup of an area or institution
• “Overcoming obstacles” narratives or “diversity statements,” e.g., hiring requirements that advantage those who discuss experiences intrinsically tied to protected characteristics

As you can see, “proxies” is a broad category, and not all uses of proxies are necessarily unlawful. Employers seeking to update their policies to remove potentially unlawful proxy usage should contact a Norfolk employment lawyer for further guidance. 

Segregation Based on Protected Characteristics 

According to the Memo, unlawful segregation occurs when a covered entity organizes programs, activities, or resources in such a way that separates or restricts access based on a protected characteristic. And while compelled segregation generally is unlawful, the memo notes that failing to maintain sex-segregated spaces — such as bathrooms and other intimate spaces — can also be unlawful. 

Examples of unlawful segregation include: 

• Race-based training sessions, e.g., race-based groups such as a “Black Employees Group” or “White Ally Group”
• Segregation in facilities or resources, e.g., a “BIPOC-only lounge,” even if access is technically open to all 
• Implicit segregation through program eligibility, e.g., DEI workshops that require participants to identify with a special racial or ethnic group to participate

Use of Protected Characteristics in Candidate Selection 

The Memo prohibits the use of prohibited characteristics as a basis for selecting candidates for employment, including “diverse slate” requirements, diversity decision-making panels, and diversity-focused evaluations. 

Examples of unlawful use of protected characteristics in candidate selection include: 

• “Diverse slate” policies, e.g., requirements that all interview slates for employment positions include a minimum number of candidates from specific racial groups
• Sex-based selection for contracts, e.g., polices that prioritize awarding contracts to women-owned businesses, including polices that use sex as a tiebreaker 
• Race- or sex-based program participation. e.g., an internship program that requires that 50% of selected participants be from “underrepresented racial groups”

This new policy may make it more difficult for employers to hire candidates from certain backgrounds; for more information about how to do so without running afoul of federal antidiscrimination law, speak to a Norfolk employment lawyer. 

Training Programs That Promote Discrimination or Hostile Environments

Unlawful DEI training programs are those that “stereotype, exclude, or disadvantage individuals based on protected characteristics or create a hostile environment.” That includes trainings that (1) exclude or penalize individuals based on protected characteristics, or (2) create an objectively hostile environment through severe or pervasive use of presentations, videos, and other training materials that single out, demean, or stereotype individuals based on protected characteristics. As an example of unlawful DEI training programs, the Memo cites programs that include statements stereotyping individuals based on protected characteristics, such as “all white people are inherently privileged” or discussions of “toxic masculinity.” 

Ensure Your Workplace Polices Are Compliant With Assistance From a Norfolk Employment Lawyer 

The DOJ’s memo makes clear that employment antidiscrimination law is in a new era. Policies and practices that were presumptively legal even one year ago can now expose employers to legal liability. The best way to avoid that outcome is to work with an experienced attorney to evaluate your current policies and procedures and make amendments where necessary. To get started, please contact a Norfolk employment lawyer at Pierce / Jewett by calling 757-624-9323 or using our online contact form.