The Department of Justice (DOJ) released new guidance July 29 as the federal government targets DEI programming at public and private institutions, while warning organizations against trying to skirt the guidance.
New clarity. The guidance from Attorney General Pam Bondi was directed towards any entity that receives federal funding, and focused on “best practices.” While it isn’t legally binding, it points to several instances where programs may pose discrimination risks. Much of the document contained reminders on established non-discrimination laws like Titles VI and VII of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972.
Some institutions have talked about retooling DEI to be more about other factors, such as socioeconomic diversity, but the government also warns against taking such steps, noting they could be considered “potentially unlawful proxies.”
The DOJ claimed that “facially neutral criteria” in which employers may target a particular region to diversify its workforce may be legally risky if the proxy is meant to advantage a particular group.
“What the DOJ memo is flagging is that, ‘Don’t try to scratch your nose through a different avenue and call it neutral,’” Alyesha Asghar, co-chair of the equal employment opportunity and inclusion practice at Littler told HR Brew, citing examples of what would constitute a red flag to the government.
“If an employer was to say, ‘You know what, no, we don’t care about prohibited protective characteristics, we’re just going to expand our recruitment and hiring based on geographical zip codes. But the zip codes are conformed, gerrymandered, in essence, to hit certain communities that are majority, historically marginalized communities. That’s what the DOJ memo is trying to avoid.”
While the DOJ warned against any hiring or employment practices that benefit one group over another, Asghar doesn’t think that something like recruiting from, for example, Christian universities or Historically Black Colleges and Universities would be impacted.
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“You truly have to be expansive,” she said, emphasizing that just because an employer holds a recruitment event at a university, does not mean anyone is guaranteed employment. “Just having those relationships with HBCUs and women’s colleges is not an issue, but if you had relationships with HBCUs and women’s colleges, but not with majority institutions, that would be a problem.”
Threats to ERGs. Perhaps most striking, the guidance suggests that employers should not be allowed to have organized resources or facilities based on protected characteristics, according to Asghar. She believes that it’s an indirect nod to employee resource groups (ERGs).
“This is implicitly talking about employee resource groups,” Asghar said, noting the focus on segregations in facilities or resources, even when they’re “technically” open to everyone. “Identity-based framing can give rise to perception of segregation.”
She explained that a women’s ERG, for instance, that’s open to all could make a cisgender man feel otherized, which opens the company to risk, in her view. “Employers need to be very vigilant…in the continuous good shepherding of the ERG.”
While the instructions are directed towards federal funding recipients, the DOJ indicated that the guidance is actually broader, stating that “public and private employers should review this guidance carefully to ensure all programs comply with their legal obligations.”
It’s unclear how much pull the guidance has, as scholars have noted that despite President Trump’s anti-DEI executive orders, the pre-existing laws remain, and employers are also beholden to state laws.
Still, Asghar doesn’t believe that the DOJ will dissuade employers from all DEI initiatives, and pointed to the administration’s focus on religious bias and anti-American sentiment in the workplace. “I don’t think they’re trying to make everything that’s diversity, equity and inclusion illegal. However, organizations that have DEI programs are probably more likely to be caught by scrutiny.”