“Illegal DEI”: New Department of Justice Guidance and Its Implications for All Employers

Frank C. Morris, Jr., and Susan Gross Sholinsky, Members of the Firm in the Labor and Employment practice, co-authored an article in Employee Benefit Plan Review, titled “‘Illegal DEI’: New Department of Justice Guidance and Its Implications for All Employers.”

Following is an excerpt (see below to download the full version in PDF format):

What constitutes “illegal DEI” under the Trump administration? Many employers have been wrestling with this question since the president took office and immediately issued several executive orders (EOs) criticizing diversity, equity, and inclusion (DEI) programs as discriminatory.

Now, the U.S. Department of Justice (DOJ) has offered answers, publishing a memorandum from the Attorney General1 titled “Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination” (the AG Memo), which explains how the administration plans to apply federal antidiscrimination laws to DEI programs and initiatives. In an accompanying press release,2 the DOJ clarified that its purpose in issuing the AG Memo is to ensure that taxpayer-funded institutions do not engage in unlawful discrimination and instead use federal funds “for the public good.”

The AG Memo is nominally directed at federal agencies and recipients of federal funding – i.e., government contractors already on high alert due to prior announcements regarding plans for aggressive enforcement under a Civil Rights Fraud Initiative launched earlier this year featuring actions under the False Claims Act.3 But the AG Memo is pertinent to almost all U.S. employers, given that enforcement priorities at multiple agencies, such as the DOJ and the Equal Employment Opportunity Commission (EEOC), include a focus on “DEI-related discrimination.” …