A new nine-page memo issued by Attorney General Pam Bondi that is intended to provide clarity as to when the federal government considers diversity, equity and inclusion (DEI) initiatives to be unlawful actually adds little to achieve that.  The memo highlights five categories of policies and practices, with examples of each, that the Department of Justice (DOJ) will consider to be unlawful practices.  As is evident from the summary below, however, the categories overlap with one another and the same examples are repeated multiple times, leaving really a handful of subjects that are driving the administration’s intense attack on DEI.  Part II of this article highlights those key themes, and where they leave federal contractors, federal grant recipients, and all employers.  Part III then focuses on the one somewhat novel area of the Attorney General’s memo – a critique of initiatives focused on socioeconomic status, first generation professionals, and similar characteristics that are not themselves legally protected but that the Attorney General warns may not be “chosen to increase participation by specific racial or sex-based groups.”

Offensive Practices as Identified by the DOJ

According to the Attorney General’s memo, organizations that engage in any of the following initiatives risk revocation of contract or grant funding and liability for discrimination if a grant recipient knowingly funds unlawful practices of others:

1. Granting preferential treatment to individuals or groups based on protected characteristics in a way that disadvantages other qualified persons, except in very limited circumstances. Examples of impermissible programs include:
   • Scholarships, internships, mentorship programs or leadership initiatives that use race as a selection criterion, regardless of intent to promote diversity “without meeting the strict legal standards required for race-conscious programs;”
   • Preferences in hiring or promotion based on underrepresentation of a racial or other legally protected group; and
   • Access to facilities or resources, including a DEI initiative’s designation of a “safe space” or lounge exclusively for individuals of a specific racial or ethnic group.
2. Use of ostensibly neutral criteria that function as substitutes (“proxies”) for explicit consideration of race, sex, or other protected characteristics. Examples include:
   • Consideration of “cultural competence,” “lived experience,” or “cross-cultural skills” to advantage candidates who have experiences the employer associates with certain racial or ethnic groups;
   • Recruitment strategies that target specific geographic areas, institutions, or organizations primarily because of their racial or ethnic composition rather than other legitimate factors; and
   • “Overcoming obstacles” narratives or diversity statements where the narrative is used as a proxy to advantage those who discuss experiences intrinsically tied to protected characteristics.
3. Segregation based on protected characteristics, and the failure to segregate athletic competitions and intimate spaces based on sex assigned at birth. Examples include:
   • Training sessions that separate participants by racial group for facilitated discussions;
   • Segregated facilities or resources, such as a BIPOC-only study lounge, or other facilities that segregate access based on protected characteristics, even if intended to create “safe spaces,” except facilities that are segregated based on sex at birth to protect privacy or safety, such as restrooms, showers, locker rooms, or lodging; and
   • Implicit segregation of programs by requiring participants to identify with a specific racial or ethnic group, or sex-specific criterion.
4. Use of protected characteristics in candidate selection, whether by explicit mandate of diverse representation or through implicit diversity priorities.  Examples include:
   • Any policy that sets racial benchmarks or mandates demographic representation in candidate pools, such as through a “diverse slate” requirement;
   • Policies favoring minority or women-owned businesses “without satisfying the appropriate level of judicial scrutiny;” and
   • Scholarships, fellowships, leadership initiatives or other programs that use a protected characteristic as a selection criterion, “even if framed as addressing underrepresentation.”
5. Training programs that stereotype, exclude or disadvantage individuals based on a protected characteristic or that create a hostile environment through training materials. Examples include:
   • DEI trainings that “single out, demean, or stereotype individuals” based on protected characteristics, with statements such as “’all white people are inherently privileged,’” or “’toxic masculinity.’”

Recurring Examples on Repeat

Although classified as distinct categories, review of the above summaries reflects clear overlap between what is considered  “preferential treatment,” “segregation,” “proxies,” and otherwise impermissible selection criteria.  Part II of this article breaks down the recurring themes and examples that appear most offensive to the DOJ, and highlights where it appears the legal battlegrounds will be drawn for the future.

By Tracey I. Levy