New DOJ Memos Target Diversity, Equity, and Inclusion Practices Under Attorney General Pamela Bondi

Guidance on DEI From the DOJ Memos

At the outset, the DOJ memos provide some guidance to employers as to what may be permissible when it comes to DEI and/or cultural awareness programs and activities. Both memos state that they are “intended to encompass programs, initiatives, or policies that discriminate, exclude, or divide individuals based on race or sex. [They do] not prohibit educational, cultural, or historic observances—such as Black History Month, International Holocaust Remembrance Day, or similar events—that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.” This provides some insight as to where the DOJ may draw the line with respect to what is and is not permissible.

While DOJ’s internal memo, Eliminating Internal Discriminatory Practices, focused on its practices within the Department, it provides useful guidance for private sector entities and institutions of higher education in evaluating their own policies and procedures. In particular, three points in the memo are helpful for private sector organizations in evaluating their own conduct.

First, Attorney General Bondi states that there “is no place in [DOJ] materials for race- or sex-based preferences, diversity hiring targets, or preferential treatment based on DEI- or DEIA-related criteria. All Department materials that encouraged or permitted race- or sex-based preferences as a method of compliance with federal civil rights laws are rescinded and will be replaced with new guidance affirming that equal treatment under the law means avoiding identity-based considerations in employment, procurement, contracting, or other Department decisions.” Second, each Department component is instructed to terminate, to the maximum extent allowed by law, “all DEI, DEIA, and ‘environmental justice’ programs, offices, and positions (including but not limited to ‘Chief Diversity Officer’ or similar positions); all ‘equity action plans’, ‘equity’ actions, initiatives, or programs; all ‘equity-related’ grants or contracts, and all DEI or DEIA performance requirements for employees, contractors, suppliers, vendors, or grantees[.]” Third and finally, each DOJ component will remove references to DEI or DEIA in (1) training programs (including references to “‘unconscious bias,’ ‘cultural sensitivity,’ ‘inclusive leadership,’ and any emphasis on race- or sex-based criteria rather than merit”); (2) policies and guidelines; and (3) contracts and budget materials.

DOJ’s external memo also directs the DOJ to prepare a variety of plans for litigation to deter the use of DEI, including proposals for criminal investigations and up to nine potential civil compliance investigations of entities that are either publicly traded corporations, large nonprofit corporations or associations, foundations with assets of $500 million or more, state and local bar and medical associations, and institutions of higher education with endowments more than $1 billion. The Justice Department will also consider potential litigation in other cases including through either intervention, statements of interest, or amicus briefs to eliminate DEI. Notably, any statements of interest in Title VII cases will mark a new approach for the DOJ in prosecutions and investigations under that statute. DOJ’s internal memo also calls for the identification of any federal contractors, suppliers, vendors, and grantees who provided DEI training and DEI materials to the Justice Department in the past. Finally, the DOJ plans to also work with the Department of Education to eliminate DEI programs at institutions of higher education that receive federal funds, citing the Students for Fair Admissions. v. Harvard (2023) Supreme Court case, which ended affirmative action in admissions. Thus, all of the parties who may fall into the above buckets should heed this new DOJ guidance on DEI.

Additional Guidance From the Office of Personnel Management in Connection With ERGs

Although the Attorney General’s memoranda did not mention Employee Resource Groups (ERGs), a memo from the Acting Director of the United States Office of Personnel Management (Feb. 5, 2025) (the OPM Memo), provides some guidance on the legality of such groups. As an initial matter, the OPM Memo states that “Executive Orders 13583 and 14035 removed two of the primary legal authorities” for such groups and the United States government should therefore “prohibit ERGs that promote unlawful DEIA initiatives or advance recruitment, hiring, preferential benefits (including but not limited to training or other career development opportunities), or employee retention agendas based on protected characteristics.” The OPM Memo stated that such groups may remain to “host lunches, engag[e] in mentorship programs, and otherwise gather for social and cultural events.” For any such events, federal agencies must also “ensure that attendance . . . is not restricted (explicitly or functionally) by any protected characteristics, and that attendees are not segregated by any protected characteristics during the events.” Based on this internal guidance, private institutions with ERGs should discuss with counsel the ways in which such groups can remain in existence and whether, and to what extent, the mission of the groups must change.

Conclusion

Entities in the private and educational sectors should seek legal counsel regarding the legality of their DEI/DEIA programs and initiatives and work with counsel on ways in which to adapt (or remove) existing practices to comply with agency guidance. Even before President Trump’s election, many major corporations reportedly rolled back their DEI/DEIA initiatives. Following the release of the DOJ memos, it would be prudent for all private entities to ensure their compliance under this new emerging rubric.

Ballard Spahr’s White Collar Defense and Investigations and Labor and Employment Groups have robust experience in advising private sector and educational clients in navigating the new landscape when it comes to diversity, equity, and inclusion initiatives and programs, as well as responding to governmental inquiries and investigations and civil enforcement proceedings. We are currently advising clients on this topic and can perform privileged audits of existing programs and practices. Please contact us if we can assist you in advice and counsel regarding such matters or in responding to active inquiries, investigations, or proceedings.