Last week, Attorney General Pam Bondi issued a memorandum to all federal agencies clarifying the application of federal antidiscrimination laws to DEI programs. The memo highlights five categories of conduct that could give rise to liability for violating federal anti-discrimination laws. This excerpt from a Latham memo on the guidance summarizes the categories of conduct that the DOJ finds to be problematic:

1. Preferential treatment based on protected characteristics, which includes race-based scholarships or programs, preferential hiring or promotion practices, and access to facilities or resources based on race or ethnicity.

2. Prohibited use of proxies for protected characteristics, which could occur when a federally funded entity “intentionally uses ostensibly neutral criteria that function as substitutes for explicit consideration of race, sex, or other protected characteristics.” The Guidance notes that potentially unlawful proxies include requiring narratives related to “overcoming obstacles” or “diversity statements” insofar as they “advantage[] those who discuss experiences intrinsically tied to protected characteristics[.]” Critically, the Guidance suggests that efforts to recruit from particular organizations or geographic areas can constitute unlawful activity if these entities or locations were chosen “because of their racial or ethnic composition rather than other legitimate factors.”

3. Segregation based on protected characteristics, which includes race-based training sessions, segregation in facilities or resources, and implicit segregation through program eligibility. Importantly, DOJ reiterates the administration’s position that “failing to maintain sex-separated athletic competitions and intimate spaces can also violate federal law” when transgender individuals are permitted “to access single-sex spaces designed for females[.]”

4. Unlawful use of protected characteristics in candidate selection, which includes race-based “diverse slates” in hiring, sex-based selection for contracts, and race- or sex-based program participation goals (e.g., requirements that programs have a certain percentage of participants from underrepresented groups).

5. Training programs that promote discrimination based on protected characteristics or promote hostile environments, which include trainings that affirm that “all white people are inherently privileged” or recognize the concept of “toxic masculinity.” The Guidance notes that such trainings “may” violate Title VI or Title VII “if they create a hostile environment or impose penalties for dissent in ways that result in discriminatory treatment.”

The final section of the AG’s memorandum is devoted to a discussion of recommended best practices for entities to employ in order to ensure their programs comply with federal law.

– John Jenkins