DOJ To Employers With DEI Policies: We May Pursue You Civilly And CRIMINALLY.

On Wednesday, the Attorney General issued a memo titled “Ending Illegal DEI and DEIA Discrimination and Preferences,” a move poised to send ripples through the private and educational sectors. Aligned with President Trump’s Executive Order on January 21, 2025, this directive targets diversity, equity, inclusion (DEI), and diversity, equity, inclusion, and accessibility (DEIA) practices that discriminate based on race or sex. Employers must act now to ensure compliance and avoid potential legal challenges.

Key Takeaways for Employers

1. Compliance is Non-Negotiable: The DOJ’s memo clarifies that any DEI or DEIA initiatives that exclude, divide, or discriminate based on race or sex are unlawful. Employers, particularly those receiving federal funds, must review their programs to ensure they align with federal civil rights laws.
2. Emphasize Merit-Based Practices: The Executive Order and DOJ memo reinforce the importance of merit-based hiring, promotions, and employment decisions. Employers should evaluate their current policies to ensure qualifications, skills, and performance drive decisions. The goal is to build inclusive workplaces without resorting to discriminatory practices.
3. Seek Legal Guidance: In a LinkedIn post, former EEOC Commissioner Chai Feldblum emphasized that the Department of Justice’s use of terms like “discriminate,” “exclude,” and “divide” in their memo is open to interpretation, making it crucial to consult legal counsel. Employers should work closely with legal experts to develop policies that foster a diverse and inclusive workplace while ensuring compliance with federal law. For example, inclusive language may involve a commitment to creating a fair work environment where everyone is valued and respected. Companies can also affirm that they do not tolerate discrimination based on race, sex, or any other protected characteristic. Additionally, employers can promote a collaborative atmosphere by emphasizing the importance of teamwork and unity within their organization. This approach helps to counter any perception of division based on race or sex and fosters a strong sense of community.

Practical Steps for Employers

• Review and Revise Policies: Conduct a comprehensive audit of existing DEI and DEIA programs to identify and address potential compliance risks.
• Train Your Team: Ensure HR professionals and managers are educated on merit-based practices and understand the legal implications of the new memo.
• Refine Messaging: Promote an inclusive and fair workplace by using language that reinforces unity and equal opportunity without crossing legal boundaries.
• Consult Legal Experts: Work with attorneys to interpret DOJ guidelines and adjust workplace policies accordingly.

Final Thoughts

This memo reemphasizes a significant shift in how DEI initiatives must be structured moving forward. Employers cannot afford to take a wait-and-see approach. Proactive compliance, clear communication, and legal guidance will be key to navigating this evolving landscape while fostering a workplace culture rooted in fairness and inclusion. Now is the time to act—before policies come under legal scrutiny.