Employers receiving federal funds may not mandate diverse hiring slates or conduct race-based training, the U.S. Department of Justice said in a guidance announced Wednesday.
The agency said those and numerous other initiatives are often touted as DEI but actually amount to unlawful discrimination. And while the guidance is aimed at federal contractors, grant recipients and others who receive federal funds, management-side attorneys said it’s instructive for all employers.
HR practices under DOJ scrutiny
DOJ took aim at a number of HR practices in its guidance, including hiring.
Policies that mandate representation violate federal law by creating unequal treatment or disadvantaging otherwise qualified candidates, the agency said, offering the example of a research institute that adopts a policy requiring that all interview slates for faculty positions include a minimum number of candidates from specific racial groups and rejecting otherwise qualified candidates.
Likewise, hiring criteria that — while neutral on its face — may function as a proxy for protected characteristics, is illegal, DOJ said. According to the agency, this can include the practice of hiring for “cultural competence” or “lived experience,” as well as geographic targeting.
DOJ also cautioned employers against race-segregated training. For example, a university DEI training program that requires participants to separate into race-based groups for discussions and prohibits individuals of other races from participating in specific sessions would be illegal, the agency said.
‘Good insight’ for HR
The agency’s guidance follows months of efforts by the Trump administration to crack down on alleged discrimination masquerading as DEI. The president used executive orders to call on agencies to issue guidance and roll back Biden-era DEI initiatives, among other directives.
“This Department of Justice will not stand by while recipients of federal funds engage in illegal discrimination,” said Attorney General Pamela Bondi in a statement announcing the guidance. “This guidance will ensure we are serving the American people and not ideological agendas.”
DOJ’s guide follows similar efforts from the U.S. Equal Employment Opportunity Commission, which also enforces nondiscrimination laws. And viewed as a whole, this governmentwide effort “gives HR good insight into what this administration believes are compliant and lawful employment practices,” Laura Mitchell, principal at law firm Jackson Lewis, told HR Dive via email.
Even entities that don’t receive federal funding should consider reviewing it carefully, according to Nonnie Shivers, shareholder for Ogletree Deakins.
Still, it’s only guidance, Shivers said in an email: “[I]t’s a good idea for employers to lean into the law to assess their compliance obligations under all applicable federal, state, and local laws. Employers can also view the guidance through the lens of their organizational risk tolerance.”
The document also may foreshadow similar, but more widely applicable, efforts from EEOC. “With the EEOC’s quorum likely to be established shortly, further guidance (and other action, such as rescission of guidance) is anticipated,” Shivers said.
