How to respond to the Justice Department's DEI hitlist

"The Department of Justice's Civil Rights Division will investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector." 

 

That's the key sentence from a Feb. 5, 2025, memo that Attorney General Pam Bondi sent to all DOJ employees.

What does it mean? No one really knows. What we do know is that diversity, equity, inclusion, and accessibility are top priorities for this administration. The key question is how the administration defines "illegal."

Here's what we can infer so far:

🛑 Quotas and Hiring Preferences – These are unequivocally illegal and will likely face the highest scrutiny. They have been unlawful since 1964, and Trump's DEI opposition hasn't changed the legal landscape.

⚠️ Pay Equity Programs – As long as employees with similar skills receive comparable pay for similar work, there shouldn't be an issue. However, the DOJ may exploit gray areas if it wants to make an example of an employer for allegedly overpaying female or Black employees.

⚠️ Affinity and Resource Groups – Likely still legal, provided they don't exclude participants based on a protected class (which they shouldn't anyway).

⚠️ Anti-Harassment Training – The legal obligation to maintain a workplace free from harassment based on protected characteristics likely outweighs any DOJ scrutiny. However, organizations should review training materials carefully given the heightened attention.

✅ Educational, Cultural, and Historical Observances (e.g., Black History Month, International Holocaust Remembrance Day) – Likely permissible. The DOJ memo explicitly states that such celebrations are acceptable as long as they promote awareness, recognize historical contributions, and celebrate diversity without exclusion or discrimination.

✅ Disability Accommodations – Still required by law. Employers must provide reasonable accommodations to enable disabled workers to perform essential job functions.

Employer's here's my advice. (*Disclaimer: blog posts are not legal advice.)

Take a breath—don't panic—but pay close attention to what's happening. The anti-discrimination narrative has shifted: once focused on protecting marginalized groups from discrimination, it has flipped to focusing on discrimination against cisgender white men.

While it's unclear how this will play out in practice, now is the time for employers to proactively audit their workplace EEO policies. And if the DOJ comes knocking, don’t forget to call your employment lawyer.