On Wednesday, July 30, the Department of Justice announced the release of new guidance it claims “clarifies the application of federal antidiscrimination laws to programs or initiatives that may involve discriminatory practices, including those labeled as Diversity, Equity, and Inclusion (“DEI”) programs.” The extended memorandum is non-binding, but essential reading for federal contractors and organizations more widely.
While reiterating the applicability of Title VI of the Civil Rights Act of 1964, Title VII of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972, the guidance takes aim at activities the current DoJ feels are in violation, “no matter the program’s labels, objectives, or intentions.” The guidance, along with the earlier announcement of the “Civil Rights Fraud Initiative”, provides a long-awaited basis for interpreting what the Trump administration means by “illegal DEI practices” (though the term itself is not used in this most recent communication).
Quoted in Wednesday’s release, Attorney General Pamela Bondi declared: “This Department of Justice will not stand by while recipients of federal funds engage in illegal discrimination. This guidance will ensure we are serving the American people and not ideological agendas.”
It offers the following examples of practices and policies that the current DoJ considers potentially unlawful:
- Race-based scholarships or programs: including internships or mentorship programs established exclusively for students of a specific racial group.
- Preferential hiring or promotion practices: any admission, hiring, or promotion policy that prioritizes candidates from “underrepresented groups” and bypasses qualified candidates who do not belong to those groups.
- Access to facilities or resources based on race or ethnicity: including a physical “safe space” exclusively for students of a specific racial or ethnic group.
- “Cultural competence” requirements: including selection criteria “that advantage candidates who have experiences the employer associates with certain racial groups.”
- Geographic or institutional targeting: recruitment strategies that target specific geographic areas, institutions, or organizations primarily because of their racial or ethnic composition.
- “Overcoming obstacles” narratives or “diversity statements”: applications asking for a description of experiences intrinsically tied to protected characteristics.
- Segregation based on protected characteristics: including race-based training sessions, segregation in facilities or resources, or implicit segregation through program eligibility. The guidance specifically exempts “facilities that are single-sex based on biological sex”.
- Race-based “diverse slate” policies in hiring: including requiring that interview slates for certain positions have a minimum number of candidates from specific racial groups.
- Sex-based selection for contracts: including any policy that prioritizes awarding contracts to women or minority-owned businesses.
- Race- or sex-based program participation: a policy requiring that a certain percentage of participants be from underrepresented racial groups, or female students.
- Trainings that promote discrimination based on protected characteristics: including training “that includes statements stereotyping individuals based on protected characteristics—such as “all white people are inherently privileged,” “toxic masculinity”, etc.”
You can read the full text of the memorandum here: Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination.
Affirmity’s Analysis and Your Next Steps
The extent to which action could legitimately be taken against federal contractors engaging in any and all of these activities is unproven at this time. A number of these practices—especially those that essentially establish quotas for certain protected groups—have always been illegal and were actively prosecuted by past administrations regardless of political orientation. For now, the memorandum should be taken under advisement as “practical recommendations to minimize the risk of violations” (to use its own terminology).
We would echo the memorandum’s recommendation that all employers “should review this guidance carefully to ensure all programs comply with their legal obligations”. We advise that this process should involve your legal team, outside counsel, and/or experienced external consultants. Affirmity customers are encouraged to reach out to their dedicated consultant or account manager.
Affirmity believes that the best approach for organizations committed to non-discrimination and merit-based employment practices is to retain the tried and tested workforce analytics, risk management, and employee engagement tools they have always relied on. You can learn more about our recommendations by reading the blog posts linked below, and we encourage you to stay tuned for more insights from our team planned in the weeks and months ahead.
- Why Affirmative Action Should Still Be On Your Agenda: When Is an AAP Required at the Federal and State Level?
- 5 Reasons Organizations Must Continue Performing Adverse Impact Analyses
- 11 Essential Answers to Your Frequently Asked Questions on Non-Discrimination Best Practices
- Recent OFCCP Developments Under Its New Director, the Compliance Implications, and Your Next Steps
- Affirmity Joins Prominent Industry Leaders in Best Practices Response After Revocation of EO 11246.
Stay updated as more details on incoming policies and non-discrimination laws become available: contact us today, or reach out to your dedicated consultant or account manager.
About the Author
Kim Hendon oversees account management and sales for Affirmity. She is responsible for building successful, long-term partnerships with clients and generating new business. Having served with the company for more than 25 years, Ms. Hendon has in-depth knowledge and broad experience in all areas of workforce analytics and HR compliance. Ms. Hendon assists clients with the planning and development of workforce compliance and non-discrimination programs, as well as employee engagement initiatives. She holds a Bachelor of Arts in Speech Communication and a Master’s in Business Administration. Connect with her on LinkedIn.