By Chris Farmer, NFDA General Counsel
The Department of Justice advises that Diversity, Equity, and Inclusion (DEI) programs, policies, and practices are contrary to federal antidiscrimination laws.
The U.S. Department of Justice (DOJ) has issued new guidance that clarifies how America’s anti-discrimination laws are to be applied. U.S. Attorney General Pam Bondi issued a memo addressing the changes that re-establish “one of our Nation's bedrock principles[,] that all Americans must be treated equally.”
The Attorney General reiterated that “not only is discrimination based on protected characteristics illegal under federal law, but it is also dangerous, demeaning and immoral.” She acknowledged that, “in recent years, the federal government has turned a blind eye toward, or even encouraged, various discriminatory practices, seemingly because of their purportedly benign labels, objectives, or intentions.” The Attorney General declared that, going forward, “the federal government will not stand by while recipients of federal funds engage in discrimination.”
While this guidance specifically applies to entities receiving federal funds, whether private, public or governmental, the DOJ makes clear that initiatives that may involve discriminatory practices, including those labeled as DEI programs, policies and practices are contrary to federal antidiscrimination laws, and entities must “ensure that their programs and activities do not discriminate on the basis of race, color, national origin, sex, religion or other protected characteristics-no matter the program's labels, objectives or intentions.”
The guidance emphasizes there are significant legal risks in initiatives that involve discrimination based on protected characteristics:
- The use of terms such as "DEI," "Equity," or other euphemistic terms does not excuse unlawful discrimination or absolve parties from scrutiny regarding potential violations.
- Using race, sex or other protected characteristics for employment, program participation, resource allocation or other similar activities, opportunities or benefits, is unlawful, except in rare cases where such discrimination satisfies the relevant level of judicial scrutiny.
- Compelling employees to share intimate spaces with the opposite sex or allowing men to compete in women's athletic competitions would typically be unlawful.
- Facially neutral criteria (e.g., "cultural competence," "lived experience," geographic targeting) that function as proxies for protected characteristics violate federal law if designed or applied with the intention of advantaging or disadvantaging individuals based on protected characteristics.
- Individuals who object to or refuse to participate in discriminatory programs, trainings or policies are protected from adverse actions like termination or exclusion based on that individual's opposition to those practices.
The DOJ identifies "Best Practices" as non-binding suggestions to help entities comply with federal anti-discrimination laws to minimize the risk of violations. The DOJ’s recommended best practices include recommendations that entities:
- Ensure inclusive access to all workplace programs, activities and resources
- Focus on specific, measurable skills and qualifications directly related to the job or program
- Prohibit demographic-driven criteria aimed at achieving a specific outcome
- Document the legitimate reason(s) for using criteria that might correlate with protected characteristics
- Eliminate diversity quotas in favor of purely merit-based criteria
- Avoid exclusionary training programs that segregate participants based on protected characteristics
- Include nondiscrimination clauses in contracts with third parties and monitor compliance
- Establish clear anti-retaliation procedures and reporting mechanisms
Remember, while this guidance explicitly applies to entities receiving government funds, the DOJ makes clear that the prohibited actions violate federal law, and could, and most likely will, be applied to private sector employers as well.
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