Attorney General Issues Memo Stating that Illegal DEI and DEIA Programs in Private Sector Will Be Prosecuted

Topics: Discrimination, Harassment & Retaliation, Employee Hiring, Discipline & Termination, Legal Information

The day after her nomination was confirmed last week, Attorney General Pam Bondi issued a memorandum to all Department of Justice employees on Wednesday, February 5th, stating that the USDOJ’s Civil Rights Division will begin investigating, prosecuting and penalizing illegal DEI and DEIA preferences, mandates, policies, programs and activities in the private sector (as well as in educational institutions that receive federal funds) that are based on race or gender.  

Bondi states that this action is necessary to enforce federal civil rights laws and to encourage the private sector to end illegal discrimination and preferences. She did not indicate what would be considered illegal and what would not, other than to state that educational, cultural, or historical observances such as Black History Month, International Holocaust Remembrance Day or similar events that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination are permissible.  

This memorandum creates many questions about what is permissible and what is not, and it remains unclear how prosecutions will be handled and what penalties will be assessed for violators. It also remains unclear where the courts will draw the line on what types of DEI and DEIA programs are permitted and what types are inconsistent with applicable federal discrimination laws. The federal courts may not draw the line at the same place the Trump Justice Department decides to draw it. That will be determined as matters are prosecuted in the coming months.   

It is difficult to determine exactly what actions an employer should take now in light of this memorandum, if any. It likely depends on risk tolerance, the specifics of any diversity efforts that the employer is currently engaged in or plans to engage in and other factors. However, at a minimum, employers who engage in any diversity efforts or initiatives should definitely discuss this memorandum with competent and experienced legal counsel as part of their consideration for reevaluation of any diversity efforts in light of the recent crackdown on DEI-related activities by the Executive Branch.