{"id":58431,"date":"2025-08-04T19:59:10","date_gmt":"2025-08-04T19:59:10","guid":{"rendered":"https:\/\/www.newsbeep.com\/us\/58431\/"},"modified":"2025-08-04T19:59:10","modified_gmt":"2025-08-04T19:59:10","slug":"the-doj-issues-its-interpretation-of-illegal-dei-mintz-employment-viewpoints","status":"publish","type":"post","link":"https:\/\/www.newsbeep.com\/us\/58431\/","title":{"rendered":"The DOJ Issues Its Interpretation of \u201cIllegal DEI\u201d | Mintz – Employment Viewpoints"},"content":{"rendered":"

The U.S. Department of Justice issued a memorandum to all Federal Agencies providing guidance clarifying the application of Federal discrimination law to DEI programs and offering best practices for program compliance.\u00a0 The memorandum,\u00a0Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination<\/a> (the \u201cGuidance\u201d), ostensibly focused on entities receiving federal funding, fleshes out what the Trump Administration meant when it referred to \u201cillegal DEI\u201d in a series of Executive Orders issued earlier this year, and is far more expansive than the guidance the EEOC\/DOJ jointly issued back in March (which we discussed\u00a0here<\/a>).\u00a0 While the DOJ confirmed that the Guidance is non-binding (e.g. the best practices it offers are not mandatory), employers, whether they do business with the federal government or not, should pay very close attention to its overall message.\u00a0We summarize the guidance below.\u00a0<\/p>\n

1. The first part of the Guidance identifies a non-exhaustive list of potentially unlawful discriminatory actions that could result in the revocation of federal funding, including:<\/p>\n

\u00a0<\/p>\n

Cited Examples:\u00a0<\/p>\n

Race-based or race-exclusive scholarships, programs or other opportunities such as internships, mentorship programs, or leadership initiatives \u201cthat reserve spots for specific racial groups, regardless of intent to promote diversity.\u201d\u00a0<\/p>\n

Prioritization of candidates from \u201c\u2018underrepresented groups\u201d for admission, hiring, or promotion while \u201cbypassing\u201d qualified candidates.\u00a0<\/p>\n

Engaging in \u201cproxy\u201d discrimination \u2013 that is, attempting to disguise discriminatory actions by utilizing facially neutral criteria as a substitute for protected characteristics with the intent to advantage or disadvantage individuals based on such protected characteristics.<\/p>\n

\u00a0<\/p>\n

Cited Examples:\u00a0<\/p>\n

Using \u201ccultural competence\u201d selection criteria as a proxy for prioritization of people based on racial or ethnic background.\u00a0 Although this occurs more in the university application process, it can occur when employers create internships, fellowships or scholarship programs by asking applicants to demonstrate \u201clived experiences,\u201d to share \u201cobstacles they have overcome,\u201d or to identify \u201ccross-cultural skills\u201d in ways that \u201ceffectively evaluate candidates’ racial or ethnic backgrounds rather than objective qualifications.\u201d\u00a0<\/p>\n

Engaging in \u201cgeographic or institutional targeting\u201d by implementing recruiting strategies that focus on \u201cspecific geographic areas, institutions, or organizations chosen primarily because of their racial or ethnic composition rather than other legitimate factors.\u201d\u00a0<\/p>\n

Soliciting \u201covercoming obstacles\u201d narratives or \u201cdiversity statements\u201d from candidates in a way that \u201cadvantages those who discuss experiences intrinsically tied to protected characteristics, using the narrative as a proxy for advantaging that protected characteristic in providing benefits.\u201d<\/p>\n

Segregating individuals based on protected characteristics\u00a0\u2013\u00a0here, the focus is on prohibiting segregation under the guise of promoting inclusion or remedying past inequities.\u00a0 But the Guidance is also careful to note potential exceptions such as permitting segregation for intimate spaces designated for women only, like bathrooms (which aligns with other DEI Executive Orders (discussed\u00a0here<\/a>)); or where Federal law \u201cexpressly permits race-based remedies for specific, documented acts of past discrimination by the institution itself or in specialized contexts . . . .\u201d\u00a0<\/p>\n

Cited Examples:\u00a0<\/p>\n

Using protected characteristics as the basis for selection criteria\u00a0\u2013 employers cannot mandate or implicitly prioritize specific groups.\u00a0 Notably, this extends not only to hiring and promotions, but also to selection of vendors or program participation.\u00a0 \u00a0<\/p>\n

Cited Examples:\u00a0<\/p>\n

Requiring a minimum number or percentage of candidates from certain protected groups when interviewing.\u00a0<\/p>\n

Providing contracting preferences to minority-owned businesses or using a business\u2019s minority status as a tiebreaker.\u00a0<\/p>\n

Mandating a certain number or percentage of program participants, scholarship recipients, fellowship recipients, or leadership initiative participants to be from a diverse background (e.g. 50% of program participants are women) \u201ceven if framed at addressing underrepresentation.\u201d<\/p>\n

Utilizing training programs that promotion discrimination or a hostile work environment \u2013 the Guidance is focused on eliminating such programs that \u201cthrough their content, structure, or implementation\u2014stereotype, exclude or disadvantage individuals based on protected characteristics or create a hostile work environment.\u201d\u00a0<\/p>\n

Cited Examples: Using presentations, videos or other training materials that may single out, demean or stereotype, including using phrases such as \u201cwhite privilege\u201d or \u201ctoxic masculinity\u201d in a DEI training.<\/p>\n

\u00a0<\/p>\n

2. The Guidance also identifies recommended \u201cBest Practices\u201d to comply with federal antidiscrimination laws and \u201cminimize the risk of violations.\u201d\u00a0<\/p>\n

Some of these recommendations echo previous suggestions from employment practitioners, including: (i) ensuring inclusive access to workplace programs, activities and resources, (ii)\u00a0documenting rationales for hiring programs, including based on specific, measurable skills and qualifications, that can be shown as unrelated to protected characteristics; (iii) avoiding diversity quotas; (iv) ensuring that training programs are sufficiently inclusive and content appropriate; and (v)\u00a0having strong anti-retaliation policies and procedures.\u00a0 The Guidance includes other recommended best practices such as:<\/p>\n

Prohibiting \u201cdemographic-driven criteria\u201d \u2013 such as targeting \u201cunderserved geographic areas\u201d or \u201cfirst generation students\u201d if \u201cthey are chosen to increase participation by specific racial or sex-based groups.\u201d\u00a0<\/p>\n

Scrutinizing neutral criteria for \u201cproxy effects\u201d \u2013 for example, if targeting \u201clow-income students,\u201d ensuring the program is applied uniformly without targeting areas or populations to achieve certain race or sex-based outcomes.\u00a0<\/p>\n

Ensuring downstream third parties comply with antidiscrimination measures \u2013 such as requiring explicit non-discrimination clauses in contracts and monitoring third parties, such as vendors or subcontractors, for ongoing compliance.<\/p>\n

\u00a0<\/p>\n

3. Additional Considerations For Employers<\/p>\n

From a practical standpoint, the Guidance creates some new areas of potential concern for employers, federal contractors, and federal fund recipients, such as:<\/p>\n

Notwithstanding the language of the Supreme Court\u2019s Harvard Admissions\u00a0decision that appeared to support inquiries into different human experiential backgrounds, the Guidance\u2019s focus on \u201cproxy discrimination\u201d cautions employers to think carefully before deploying this type of selection criteria (e.g. \u201cdisadvantaged backgrounds\u201d or \u201csocioeconomic status\u201d), whether applied in the college application or hiring processes, as part of workplace scholarship programs or even when considering workplace promotions. \u00a0It remains to be seen how this apparent tension between the Guidance and legal precedent will be settled, but in the meantime, employers should carefully craft this criteria to ensure it is not viewed as a workaround for selections based on a protected class.\u00a0<\/p>\n

The Guidance warns federal grantees (and, likely, federal contractors) to ensure that any federal funding they distribute to third parties does not further any of the practices the Guidance deems discriminatory.\u00a0 To this point, the Guidance suggests that Federal grantees should review third parties\u2019 practices for ongoing compliance and even include nondiscrimination clauses in contracts that require third parties to comply with federal law, specify that federal funds cannot be used for discriminatory programs, and terminate contracts if they do. \u00a0Employers should consider whether and how they will: (1) revisit existing, and negotiate new, contracts to ensure their own DEI certifications are accurate, and (2) tackle the associated additional diligence of third party policy, practices and procedures (including, as the Guidance suggests, by \u201creviewing program materials, participant feedback, and outcomes\u201d of their contracting relationships).<\/p>\n

Readers familiar with the \u201cRooney Rule\u201d and those who have made intentional efforts to seek talent in other parts of the country or at a greater number of academic institutions should consider the Guidance\u2019s impact on those goals.\u00a0 Employers will need to discern how they pursue talent while taking care to avoid claims of proxy discrimination, especially in light of varying interpretations of an employer\u2019s decision to expand its recruiting sources.\u00a0<\/p>\n

Notably absent from mention in the Guidance is any reference to the False Claims Act liability that can come from making false certifications regarding a federal contractor\u2019s or federal grantee\u2019s compliance with federal antidiscrimination mandates (which we discussed\u00a0here<\/a>).\u00a0 Federal agencies could look at the Guidance for examples of practices that would constitute violations of those certification requirements.<\/p>\n

Although the Guidance raises many new questions, it is clear that DEI in the workplace will continue to be a constantly evolving topic. \u00a0Mintz\u2019s Employment Practice will have more to come on this most recent development.\u00a0 But for now, the Guidance highlights for employers the importance of: (1) auditing their DEI policies and practices to understand the scope of the policies\/programs their organization maintains, how they are implemented, and whether they continue to remain legally compliant; and (2) being deliberate\u00a0and strategic\u00a0about their actions, particularly given the drastic changes to date.\u00a0<\/p>\n

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