What is “unlawful DEI” and when might the federal government come after you for it? While a recent memo issued by Attorney General Pam Bondi overlapped in its categories and examples (as discussed in Part I of this article), a close reading actually reveals five key themes that will present risks for organizations in their diversity, equity and inclusion (DEI) initiatives.
- Do Not Use Race, Ethnicity, Sex or Other Protected Characteristics as a Key to Entry
Diversity initiatives that make available special programs, facilities, resources, or opportunities based on someone’s racial or ethnic group, or other protected characteristic, are considered unlawful no matter the rationale. I first flagged this issue in a blog post more than two years ago based on the Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard College, which struck down race-based consideration of college applications. Federal contractors and grant recipients that continue to offer internships, scholarships, mentoring, and similar programs using race, ethnicity, sex, or other protected characteristics as a qualifying consideration risk loss of their funding and legal action.
- But DO Separate Men and Women by Sex at Birth in Bathrooms and Sports
Second, as an inverse to the first point, initiatives that fail to separate individuals based on their sex at birth for certain facilities and programs in intimate spaces and athletic competitions are considered unlawful by the executive branch. Conflicting with the Attorney General’s (and Trump administration’s) absolutist view on this, as I discussed in Part V of our prior DEI in Crisis series, in 2020 the Supreme Court left open the question of which bathrooms, locker facilities, and similar spaces may be accessed by transgender individuals and some state and local laws mandate that they be made accessible based on an individual’s gender identity.
- Do Not Consider Protected Characteristics in Hiring and Promotions
Hiring and selection criteria that prioritize individuals who possess certain protected characteristics are generally considered unlawful. This too was a clear takeaway from the Supreme Court’s Students for Fair Admissions decision. At the same time, however, as discussed further below, the Supreme Court has historically recognized times when employers could consider race or sex as a factor in hiring and promotion decisions, and the Attorney General has made no attempt in her current memo to elucidate on when that exception might still apply.
- Check How You Run Training Programs
Training programs that stereotype, diminish or demean the experience of, or otherwise exclude certain individuals based on protected characteristics, such as those targeting white men, are considered unlawful. This issue surfaced in the Trump administration’s DEI orders and again in a technical assistance memo issued in May 2025 by the then acting (now fully confirmed) Chair of the EEOC Andrea Lucas. As discussed more thoroughly in this blog post analyzing the technical assistance memo, the training programs cited as examples by the administration are extraordinary in their approach and considerably different from most of the workplace trainings that employers conduct on DEI-related subjects.
- Watch for Proxies (or Anything that Could Be Construed as a Proxy)
Perhaps most controversially, initiatives that seek to diversify candidate pools by requiring representation of minority groups or women, that target recruitment in certain locations (geographic and institutional) to enhance diversity, or that inquire about lived experiences, overcoming obstacles, and similar challenges that may be deemed an attempt to advantage those who discuss experiences intrinsically tied to protected characteristics, are also considered unlawful. Here, too, the Attorney General’s assertions were foreshadowed in the EEOC’s technical assistance memo, although this new memo is more absolute in its approach. The Attorney General’s approach threatens the end of practices like the National Football League’s “Rooney Rule” (discussed in this prior blog post) and appears to restrict or prohibit diversity initiatives that the courts historically have recognized as permissible. Just how far the administration can go in restricting such initiatives will become a future legal battleground, and will be discussed in more detail in Part III of this article.
Strict Scrutiny Exception for Certain Classifications
Notably, several of the “unlawful” practices identified in the Attorney General’s memo also included an easily overlooked reference to an exception for race-based and gender-based classifications that meet strict legal standards. Diversity initiatives that organizations adopted in years past, and particularly certain affirmative action initiatives, often were predicated on not just the now-revoked Executive Order 11246 and its implementing regulations, but also on federal court decisions that permitted employers to take affirmative steps to eliminate workforce imbalances in traditionally segregated job categories. Organizations were not required to show that they themselves had engaged in prior discriminatory practices but rather could look at whether the proportion of minimally qualified female/minority applicants in the resident population was substantially higher than the proportion of female/minority employees in the job category. Where such an imbalance existed, the caselaw permitted organizations to take temporary measures with regard to hiring, training and promotion practices to affirmatively rectify that imbalance, provided that in doing so they did not unnecessarily trammel the rights of male/white employees or create an absolute bar to their advancement.
It remains unclear how much of that permissible exception and analysis survives at present, in part because of the revocation of Executive Order 11246 but more so because of the Students for Fair Admissions decision. As I discussed in a blog post at the time, much of the Supreme Court’s analysis behind striking the Harvard University and University of North Carolina admissions criteria also would refute employers’ rationale for their voluntary affirmative action measures. The Attorney General’s new memo does nothing to elucidate on what measures the Department of Justice (DOJ) believes are still permissible, beyond acknowledging a narrow exception technically still exists.
The Stakes for Employers
Federal contractors and grant recipients who get this wrong risk losing their federal funding. Even more alarming, a separate memo issued on May 19, 2025, by the DOJ followed through on the Trump executive orders from earlier this year and announced a new Civil Rights Fraud Initiative, whereby DOJ will use the False Claims Act to investigate and pursue claims against federal contractors and grant/funding recipients that “knowingly” violate federal civil rights laws, including through “divisive” DEI policies. The DOJ has further invited individuals to act essentially as private attorneys general and sue organizations under the False Claims Act (qui tam suits), for which the individual would receive a portion of any monetary recovery. Organizations found to have violated the False Claims Act face treble damages (the actual monetary damages are multiplied by three) and other penalties.
Employers that do not receive federal funds in any capacity are safe from False Claims Act enforcement, but nonetheless risk being sued by the EEOC through its legal enforcement mechanisms for violations of Title VII and other federal laws prohibiting discrimination in employment.
By Tracey I. Levy
