On July 29, the Department of Justice (DOJ) issued a memo to all federal agencies to serve as guidance on unlawful discrimination for recipients of federal funding. Specifically, the guidance “clarifies the application of federal antidiscrimination laws to programs or initiatives that may involve discriminatory practices, including those labeled as Diversity, Equity, and Inclusion (DEI) programs.”
The memo lays out a non-exhaustive list of “unlawful practices that could result in revocation of grant funding” for federal funding recipients. The list includes:
- Granting Preferential Treatment Based on Protected Characteristics: The guidance states that “preferential treatment occurs when a federally funded entity provides opportunities, benefits, or advantages to individuals or groups based on protected characteristics in a way that disadvantages other qualified persons, including such practices portrayed as ‘preferential’ to certain groups.”
- Prohibited Use of Proxies for Protected Characteristics: The guidance states that “unlawful proxies 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.” It states that while the criteria appear neutral, they become legally problematic when they correlate with or are used as substitutes for protected characteristics, or when they are implemented with the intent to advantage or disadvantage individuals based on protected characteristics.
- Segregation Based on Protected Characteristics: The guidance asserts that segregation violates federal law by creating unequal treatment or reinforcing stereotypes, regardless of the stated goal, but it notes that there are narrow exceptions for cases where federal law “expressly permits race-based remedies for specific, documented acts of past discrimination by the institution itself, or in specialized contexts such as correctional facilities where courts have recognized compelling institutional interests.” Under this section, DOJ also asserts that “failing to maintain sex-separated athletic competitions and intimate spaces can also violate federal law.”
- Unlawful Use of Protected Characteristics: The guidance states that “unlawful use of protected characteristics occurs when a federally funded entity or program considers race, sex, or any other protected trait as a basis for selecting candidates for employment … contracts … or program participation.” The guidance states that this includes “policies that explicitly mandate representation of specific groups in candidate pools or implicitly prioritize protected characteristics through selection criteria, such as ‘diversity slate’ requirements, diversity decision-making panels, or diversity-focused evaluations.”
- Training Programs That Promote Discrimination or Hostile Environments: The guidance states that “unlawful DEI training programs are those that — through their content, structure, or implementation — stereotype, exclude, or disadvantage individuals based on protected characteristics or create a hostile environment.” According to the guidance, this includes trainings that exclude or penalize individuals based on protected characteristics or create an “objectively” hostile environment through severe or pervasive use of presentations, videos, and other workplace training materials that single out, demean, or stereotype individuals based on protected characteristics.
Each item on the list above includes a few examples of unlawful practices. The guidance includes several examples of practices carried out by institutions of higher education. Notably for HR professionals, some examples include:
- Preferential hiring or promotion practices used by federally funded entities with DEI policies that prioritize candidates from “underrepresented groups” for hiring or promotion;
- “Cultural competence” requirements that require job applicants to demonstrate “cultural competence,” “lived experience,” or “cross-cultural skills” in a way to evaluate candidates’ racial or ethnic backgrounds;
- Race-based training sessions that require participants to separate into race-based groups for discussion;
- Race-based “diverse slate” policies in hiring that include policies requiring all interview slates for a job position to include a minimum number of candidates from specific racial groups; and
- Trainings that promote discrimination based on protected characteristics that potentially create hostile environments or impose penalties for dissent in ways that result in discriminatory treatment.
The memo also identifies nine recommendations on best practices, which the guidance states are “non-binding suggestions to help entities comply with federal antidiscrimination laws and avoid legal pitfalls.” Notably, the guidance states that the recommendations are not mandatory requirements “but rather practical recommendations to minimize the risk of [federal antidiscrimination law] violations.” The recommendations include:
- Ensuring inclusive access to all workplace programs, activities, and resources;
- Focusing on skills and qualifications when making selection decisions related to job performance or program participation;
- Prohibiting demographic-driven criteria;
- Documenting legitimate rationales when using criteria in hiring or promotions that might correlate with protected characteristics;
- Scrutinizing neutral criteria for proxy effects before implementing the criteria;
- Eliminating diversity quotas in favor of policies focusing solely on nondiscrimination performance metrics like program participation rates or academic outcomes;
- Avoiding exclusionary training programs;
- Including nondiscrimination clauses in contracts to third parties and monitoring their compliance; and
- Establishing clear anti-retaliation procedures and creating safe reporting mechanisms for individuals engaging in protected activities like raising concerns, filing complaints, or refusing to participate in potentially discriminatory programs.
CUPA-HR will keep members apprised of further developments related to this guidance and other actions taken by the federal government on DEI-related policy.