On February 5, 2025, upon her swearing-in, US Attorney General Pamela Bondi issued multiple policy memoranda identifying various priorities of the Department of Justice (DOJ) under the Trump Administration. Among them is a memorandum entitled: “Ending Illegal DEI And DEIA Discrimination And Preferences” (the Memorandum).
The Memorandum charts an enforcement path in connection with Executive Order 14173 that may impact DEI and DEIA policies in the private sector. The Executive Order, and the Memorandum by extension, acknowledge that federal civil-rights laws, such as the Civil Rights Act of 1964, serve as the bedrock of equal opportunity for all Americans. However, they also maintain that laws have since been adopted “in ways that are dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called DEI or DEIA that can violate the civil-rights laws of this Nation.” It is unclear which later-adopted laws are being referenced with this concern as they are not identified. Moreover, any existing DEI or DEIA program that has passed legal muster has long been prohibited from discriminating against anyone on the basis of race or sex.
Nonetheless, consistent with the Executive Order, the Memorandum proclaims the DOJ’s intent to investigate, eliminate, and penalize purported “illegal DEI and DEIA preferences, mandates, policies, programs, and activities in theprivatesector and in educational institutions that receive federal funds.” However, in a seeming expansion from the Executive Order, which refers to “potential civil compliance investigations,” the Memorandum also explicitly seeks “proposals for criminal investigations” in the private sector in connection with DEI and DEIA (emphasis added).
Specifically, pursuant to the Memorandum, by March 1, 2025, the DOJ’s Civil Rights Division and the Office of Legal Policy are required to submit a joint report “containing recommendations for enforcing federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including policies relating to DEI and DEIA.” The report must identify:
- Key sectors of concern within the Department’s jurisdiction.
- The most egregious and discriminatory DEI and DEIA practitioners in each sector of concern.
- A plan including specific steps or measures to deter the use of DEI and DEIA programs or principles that constitute illegal discrimination or preferences, including proposals for criminal investigations and for up to nine potential civil compliance investigations of entities that meet the criteria outlined in section 4(b)(iii) of Executive Order 14173.
- Additional potential litigation activities (including interventions in pending cases, statement of interest submissions, and amicus brief submissions), regulatory actions, and sub-regulatory guidance.
- Other strategies to end illegal DEI and DEIA discrimination and preferences and to comply with all federal civil-rights laws.
The DOJ’s reference to a criminal investigative process is another escalation in the Administration’s already strong and wide-ranging messaging against DEI and DEIA programs. Notably, however, many of the Administration’s initiatives are subject to ongoing legal challenges, which will bear upon DOJ enforcement—whether civil or criminal in nature.
For instance, in one lawsuit, filed two days prior to the issuance of the Memorandum, the plaintiffs contend that the Executive Order has a chilling effect on speech in violation of the First Amendment because it includes threats of civil compliance investigations, yet fails to define how such programs may violate longstanding federal civil rights laws. The lawsuit also challenges the Executive Order on the grounds that it is unconstitutionally vague in that it fails to provide fair notice of what is prohibited and does not have clearly defined standards, and thus encourages discriminatory enforcement in violation of the Fifth Amendment’s Due Process Clause. (Compl. For Declaratory and Injunctive Relief, National Ass’n of Diversity Officers in Higher Educ., et al. v. Donald J. Trump, in his official capacity as President of the United States, et al., No. 1:25-cv-00333-ABA (D. Md. February 3, 2025), ECF No. 1.)
The contours of DOJ enforcement will evolve over the coming months, whether due to further escalation by the Administration, voluntary or mandated changes to Executive Orders, or court-issued injunctions. In this shifting landscape, companies should nonetheless proactively evaluate their DEI and DEIA policies with counsel to ensure compliance with existing laws, which already prohibit employment decisions or quotas based on race, color, religion, sex, and national origin.
McCarter & English continues to closely monitor all developments in this area, and stands ready to assist with all aspects of company needs, from compliance counseling, to responding to subpoenas or any other form of government contact, to representation before regulatory bodies and in court.