DOJ ISSUES GUIDANCE ON COMPLIANCE WITH FEDERAL ANTIDISCRIMINATION LAW IN THE PRACTICE OF DEI

• Memo from Attorney General Bondi: Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination

 

OVERVIEW

The Department of Justice has issued new guidance on how federal anti-discrimination laws apply to Diversity, Equity, and Inclusion (DEI) policies and programs. While the guidance repeatedly states that it is “non-binding” and imposes no “mandatory requirements,” it outlines how common DEI practices may violate laws such as Title VI (prohibiting race and national origin discrimination in federally funded programs), Title VII (prohibiting race, color, sex, national origin, and religious discrimination in employment), Title IX (prohibiting sex discrimination in federally funded education programs), and the Equal Protection Clause of the Constitution.

 

The guidance purports to be directed not only to federal contractors and grantees — including those required to make anti-DEI certifications under the Executive Order Ending Illegal Discrimination and Restoring Merit-Based Opportunity— but also to any entity subject to enforcement under federal civil rights laws, including most private employers and educational institutions. It further notes that compliance with federal law is expected to be monitored not only by federal agencies but also through third-party vendors and subcontractors.

 

The document identifies four categories of DEI-related actions that may violate anti-discrimination law when tied to race, ethnicity, sex, or religion:

 

1. Preferential treatment (e.g., diverse slates or hiring panels),
2. Use of proxies (e.g., geography, socioeconomic status, lived experience),
3. Segregation (e.g., identity-specific spaces or resources, even if nominally open to all); and
4. Training content (e.g., references to concepts like “white privilege” or “toxic masculinity”).

 

Although the DOJ acknowledges the guidance has no legal force, its broad scope and specificity reflect an aggressive interpretation of civil rights law — one that may shape future audits, investigations, and enforcement actions.

 

LEGAL INTERPRETATION

Some of the actions identified in the DOJ guidance as potentially unlawful have been expressly permitted — or upheld — by federal courts, including the U.S. Supreme Court. In Students for Fair Admissions v. Harvard (2023), the Court held that while colleges and universities may no longer consider an applicant’s race directly in admissions decisions, they may continue to consider how race affected an applicant’s life, “be it through discrimination, inspiration, or otherwise.” This is the type of consideration that the DOJ guidance appears to characterize as an impermissible “proxy” for race.

 

Similarly, numerous federal courts have found that diversity training — even when it involves the discussion of contested concepts — does not, on its own, amount to unlawful discrimination under Title VII.

 

The DOJ guidance, by its own terms, contains no mandatory requirements and is not legally binding. While this guidance may signal how DOJ and other federal agencies with enforcement power under federal antidiscrimination law — such as the EEOC and the Department of Education’s Office for Civil Rights — may approach enforcement activity going forward, it does not change prevailing federal law.

 

Organizations subject to civil rights statutes — including federal contractors, grantees, educational institutions, and many private employers — should consult with legal counsel to assess their current obligations and determine how this guidance may inform compliance or programmatic decisions.

BRIDGE POV

This DOJ guidance does not carry the force of law — but it’s still important to pay it heed. While described as “non-binding,” it offers a window into how the federal government may assess compliance with antidiscrimination law going forward, particularly when it comes to DEI-related policies and programs.

 

In this moment, clarity matters. The guidance underscores what we already know: when DEI efforts are narrowly focused they are more likely to open the door to legal risk. But when inclusion is built into systems — when it is operationalized through core business functions, tied to strategy, and measured with discipline — it both strengthens performance and protects against liability.

 

When companies treat inclusion as a growth strategy by embedding it into talent pipelines, product design, marketing, governance, and service delivery, it doesn’t just mitigate legal risk — it builds brand resilience, workforce trust, and long-term value.

Inclusion that is intentional, aligned with mission, and compliant with the law remains both lawful and essential. The private sector should continue building and defending DEI models that meet these standards — by connecting workplace culture with marketplace impact, applying the same rigor, discipline, and clarity of purpose.

 

1. Conduct a DEI Legal Risk Review: Work with legal counsel to assess how your current DEI policies, hiring practices, training programs, and resource groups align with federal civil rights law. Focus especially on identifying whether any activities could be perceived as involving protected characteristics in a way that may trigger scrutiny.
2. Operationalize Inclusion Through Business Strategy: The more DEI is embedded into core systems — from workforce development to product accessibility to market expansion — the more clearly it aligns with business goals and compliance frameworks. Inclusion should not be an isolated program -  it should be a measurable component of a growth strategy.
3. Use Language with Precision in Policy and Training: Review how DEI principles are communicated internally. Avoid vague or ideological framing, and root messaging in values like fairness, opportunity, innovation, and compliance. Clear language reduces ambiguity — and helps protect lawful programs from misinterpretation.

DEMOCRATIC ATTORNEYS GENERAL FILE SUIT TO CHALLENGE EO DENYING GENDER-AFFIRMING CARE

• Commonwealth of Massachusetts et al v. Trump et al  
• Denial of Care: Executive Order #14187

 

OVERVIEW

Attorneys General from sixteen states and the District of Columbia have filed suit in federal court in Massachusetts, seeking to block enforcement of the administration’s Executive Order on the Denial of Care for transgender individuals. The lawsuit challenges both the executive order itself and several related agency actions that impose criminal and civil penalties on healthcare providers offering gender-affirming care to individuals under the age of 19.

 

The plaintiffs argue that the administration’s actions infringe upon states’ sovereign authority to regulate the health and welfare of their own citizens — including medical care standards and access. The lawsuit alleges that the administration is misusing unrelated federal laws — including statutes addressing female genital mutilation, healthcare fraud, and consumer abuse — to create liability for providers of gender-affirming care.

 

The suit also challenges the administration’s tactics on procedural grounds, arguing that the executive order and agency actions exceed the scope of federal executive authority, bypass statutory rulemaking requirements, and improperly override existing federal health policy.

 

In seeking an injunction, the states contend that enforcement of these federal directives would not only violate constitutional principles of federalism, but would also place patients, families, and providers at risk of legal exposure for delivering medically recognized standards of care.

 

LEGAL INTERPRETATION

Previous challenges to the executive order on the Denial of Care for transgender individuals had been brought by private litigants or a small number of states. While those suits led to preliminary injunctions, their scope was limited. Under the Supreme Court’s decision in Trump v. CASA, federal courts may no longer issue nationwide injunctions based solely on suits brought by individual plaintiffs. As a result, early rulings applied only to the named parties.

 

However, Trump v. CASA left open the possibility that nationwide injunctions could still be issued in cases brought by state plaintiffs. This new challenge — filed on behalf of sixteen states and the District of Columbia — may meet that threshold. If so, the court could enjoin enforcement of the executive order and related agency actions on a nationwide basis, even under the more limited standard set by Trump v. CASA.

 

Still, even if a district court issues a nationwide preliminary injunction, that order could be subject to immediate appeal. The Supreme Court has previously granted the administration’s requests to stay such injunctions, allowing contested federal actions to proceed while litigation is ongoing. As a result, any nationwide relief — even if granted — may be temporary.

BRIDGE POV

The executive order on the Denial of Care introduces the threat of legal risk for providers and heightens barriers for transgender individuals seeking medically recognized care. In doing so, it undermines a fundamental principle: that healthcare decisions should be driven by evidence, not political ideology.

 

As with the response to the overturning of Roe v. Wade, where public sector companies stepped in to protect access to reproductive healthcare when federal protections fell away, a similar responsibility exists now for the transgender community.

 

For many in the U.S., employers are the gateway to healthcare access. That means companies must ensure their plans continue to support gender-affirming care where lawful, and that transgender employees are protected from discrimination when seeking it.

 

Inclusion isn’t about what you say. In moments like this, it’s about how you act and what you provide — and how you protect the people who count on you to deliver it.
 

1. Ensure Health Plan Coverage for Gender-Affirming Care: Review healthcare benefits in consultation with legal and benefits advisors to confirm continued coverage for gender-affirming care where legally permissible. Consider offering supplemental benefits or travel support where access is limited by state or federal restrictions.
2. Communicate Care Access Clearly and Proactively: Develop internal communications to inform employees — particularly LGBTQ+ and transgender staff — about what benefits are available, how to access them, and who they can speak to confidentially. Clarity builds trust and helps prevent fear-based disengagement from needed care.
3. Strengthen Anti-Discrimination Policies and Protections: Reaffirm that your organization prohibits discrimination based on gender identity or gender expression in all areas of employment. Provide updated training and resources to managers and HR teams to ensure these protections are consistently enforced.

THE DEPARTMENT OF JUSTICE (DOJ) ENDS A FORTY (40) YEAR OLD COURT-IMPOSED CONSENT DECREE REDRESSING RACE DISCRIMINATION IN THE FEDERAL WORKFORCE

• Justice Department Dismisses Race-Based 44-Year-Old Consent Decree  

 

OVERVIEW

Consent decree originally imposed to redress systemic racial discrimination in federal hiring practices. The decree stemmed from a 1979 lawsuit brought on behalf of Black and Hispanic applicants who alleged that the civil service exam used at the time had a discriminatory impact, effectively barring them from professional and administrative roles in the federal workforce.

 

In 1981, the parties reached a court-approved settlement under the Carter administration. The resulting consent decree required the federal government to phase out the use of the contested exam and replace it with validated selection procedures designed to assess job-related qualifications without producing unlawful disparate impact against Black and Hispanic applicants. For over 40 years, the decree remained in effect, mandating ongoing federal compliance with fair hiring standards and subjecting federal employment selection procedures to judicial oversight.

 

On August 1, 2025, by joint stipulation of all parties, the lawsuit was dismissed and the consent decree formally terminated — marking the end of one of the longest-running court-enforced employment equity interventions in U.S. history.

 

LEGAL INTERPRETATION

The termination of this longstanding consent decree aligns closely with the administration’s broader effort to dismantle DEI-related policies across the federal government. As previously reported, on January 20, 2025, the administration issued two Executive Orders — Ending Radical and Wasteful Government DEI Programs and Preferencing and Reforming the Federal Hiring Process and Restoring Merit to Government Service. Both sought to eliminate what the administration characterized as “illegal DEI and DEIA policies,” framing them as contrary to principles of merit-based government service.

 

A subsequent executive order issued on April 23, 2025 went further, purporting to eliminate the use of disparate impact as a basis for liability in the enforcement of federal antidiscrimination laws. The termination of this consent decree — which for more than four decades required the federal government to monitor and mitigate disparate impact in its hiring practices — is consistent with this stated policy agenda.

 

Given the scope of presidential authority over the federal workforce, and the fact that the consent decree was terminated by stipulation of all parties, including plaintiffs, there is unlikely to be a viable legal challenge to its dissolution or to the executive actions underpinning it. Nonetheless, the end of the decree marks a significant shift in how the federal government understands and enforces its own obligations with respect to racial equity in employment.

 

BRIDGE POV

The termination of this 40-year consent decree may be procedural — but its meaning is profound. It marks the formal end of one of the longest-standing federal commitments to confronting systemic racial discrimination in hiring. And it comes at a moment when other levers of equity are being rapidly dismantled across the federal government.

 

Consent decrees don’t create inequity — they respond to it. This one existed for a reason: because government hiring systems once relied on criteria that systematically excluded qualified Black and Hispanic candidates. Many hiring systems today — public and private — still carry forward that legacy through standardized tests, cultural fit assessments, or informal gatekeeping that favors familiarity over fairness.

 

The federal government may no longer be obligated to interrogate those practices. But the private sector still can — and must. Inclusive hiring isn’t about ideology. It’s about removing friction from your talent pipeline, expanding access to qualified candidates, and building a workforce that reflects the world you serve. That’s not just a moral responsibility — it’s a competitive one.

 

When equity is no longer required by law, it becomes a test of values — and a measure of leadership.
 

1. Audit Hiring Practices for Structural Barriers: Review job descriptions, qualification criteria, and assessment tools (including written tests, interviews, and AI screening systems) to identify potential sources of bias or disparate impact. Consider replacing outdated filters with validated, role-specific predictors of success.
2. Invest in Bias-Resistant Evaluation Models: Adopt structured interviews, skills-based assessments, and diverse hiring panels to ensure selection decisions are based on capability, not conformity. These approaches are more predictive of job performance and reduce the influence of unconscious bias.
3. Build Equity into the Pipeline: Develop partnerships with HBCUs, HSIs, community colleges, workforce development programs, and alternative credentialing platforms to expand access to underrepresented talent. Ensure internal mobility programs are also equitable by disaggregating participation and promotion rates.