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:

What hiring and employment look like without DEI

What does a country without DEI look like? Some people say that's what they want. No more diversity, equity, and inclusion initiatives in hiring or the workplace. Just a pure "meritocracy."

So what does that actually look like?

Is Trump coming after Title VII next?

"Dad, did Trump just get rid of workplace discrimination laws?" That's the question my daughter asked me yesterday.

She was referring to his Executive Order entitled, Ending Illegal Discrimination and Restoring Merit Based Opportunity.

To answer Norah's question, no, that EO did not get rid of workplace discrimination laws. Instead, it dismantled federal Diversity, Equity, and Inclusion programs and placed all federal DEI employees on unpaid leave. It also rescinded Executive Order 11246, originally signed by President Lyndon Johnson in 1965, which prohibited federal contractors from discriminating based on race, color, religion, sex, or national origin, and further removing their affirmative action obligations in that regard.

An expensive lesson on pay-equity compliance

Mastercard has agreed to pay $26 million to settle allegations that it systematically underpaid thousands of female, Black, and Hispanic employees. The settlement resolves claims that the company underpaid 7,500 female, Black, and Hispanic workers compared to their male and white counterparts for performing the same or similar work.

As this case illustrates, allegations of systemic pay discrimination hit hard—financially and reputationally. As an employer, you can and should take steps to ensure fair pay practices. Not only because it's the right thing to do, but because it's critical to avoid costly lawsuits and foster a workplace of trust and respect.

Avoid "mommy-track" stereotypes with your female employees

"If she returns…" That statement is among the allegations that Chloe Koprucki makes against her former employer, Broadridge Financial Solutions, in a just-filed sex discrimination and FMLA lawsuit. In sum, Koprucki claims that the company "mommy tracked" her after her return from maternity leave.

The "mommy track" refers to the unspoken career path many working mothers find themselves on, where they are passed over for promotions or opportunities because of assumptions about their priorities or commitment. High-profile lawsuits by women at companies like Ernst & Young, Jones Day, and others have brought attention to how this practice can create serious legal risks for employers.

"Why would you want to do a man's job?"

"Why would you want to do a man's job?" That's one of the sexist questions the EEOC alleges Waste Industries—a solid waste removal, recycling, and landfill service provider—repeatedly asked female job applicants.

As a result, the company agreed to pay $3.1 million to settle the agency’s pattern-or-practice sex discrimination claim.

Don't weigh your female employees

Local restaurant owner Bobby George — famous for allegedly not hiring Black people, breaking Covid safety rules, and instituting a "Last Supper" boycott of the Olympics in his restaurants — has been charged with nine counts of rape, attempted murder, and kidnapping. The allegations are horrific, and if convicted he'll likely spend the rest of his life in prison.

In reading about his criminal case, something about how he allegedly runs his restaurants caught my attention. Allegedly, he weighs females as a condition of employment and won't hire any who don't fit his "look" — skinny and able to fit into an extra-small t-shirt.

"Do as I say, not as I do" — HR leader fired for harassment loses discrimination lawsuit

A female HR supervisor attends an out-of-town leadership retreat with some co-workers. They observe her at the hotel bar telling off-color jokes, directing repeated profanity at employees who refused to drink alcohol, and toasting a slur for the female anatomy.

Several complain to her boss about the inappropriate behavior. The company investigates and ultimately fires her for violating its harassment policy.

The HR supervisor then sues for sex discrimination, claiming that the company did not fire a male employee who engaged in similar misconduct. Specifically, she claims that he had once asked her "if the carpet matched the drapes" (which she advised the company during its investigation).

"Why would you want a man's job?" = big job interview no-no, says EEOC in lawsuit

"Why would you want a man's job?" Why do you want to take a job away from a man?"

Those interview questions are at the center of a lawsuit the EEOC filed against Waste Industries, a solid waste removal, recycling pickup, and landfill operation business.

It's illegal to deny coverage for gender-affirming care to a transgender employee simply because the employee is transgender

Can an employer-sponsored health plan legally deny coverage for gender-affirming care to a transgender employee simply because the employee is transgender?

According to the 11th Circuit Court of Appeals in Lange v. Houston Cty., the answer is an unequivocal "No, it cannot!"

“DEI” is not a 4-letter word

"DEI" is not a 4-letter word … no matter what some people want you to believe.

Companies such as Sherwin-Williams are scrapping their internal use of the words "Diversity," "Equity," and "Inclusion," and are replacing them with words such as "Belonging" and "Culture."

Ending gender bias in dress codes

During the recent Super Bowl halftime show, Usher took off his shirt and everyone oohed and aahed over his performance. Twenty years ago, Janet Jackson's breast was accidentally exposed during her halftime performance and the world stopped to nearly ruin her career over a wardrobe malfunction.

We need to have a serious conversation about sex-based stereotypes, double standards, and workplace dress code.

Here are 7 tips to draft a non-discriminatory, gender-neutral dress code for your workplace:

A DEI smackdown

It's a DEI heavyweight battle of epic proportions that played out of X over the past week.

In the blue corner, hailing from Big D, the owner of the Dallas Mavericks and serial entrepreneur Mark Cuban: 

I've never hired anyone based exclusively on race, gender, religion. I only ever hire the person that will put my business in the best position to succeed. And yes, race and gender can be part of the equation. I view diversity as a competitive advantage.

And in the red corner, hailing from our nation's capital, EEOC Commissioner Andrea Lucas: 

Unfortunately you’re dead wrong on black-letter Title VII law. As a general rule, race/sex can't even be a "motivating factor" — nor a plus factor, tie-breaker, or tipping point.… This isn't an opinion; reasonable minds can't disagree on this point. It's the plain text of Title VII.

It’s illegal for gay people to discriminate against straight people … just not on these facts in this case

There is no such thing as "reverse" discrimination. Discrimination is discrimination, whether the victim is, for example, Black or white, female or male, gay or straight. When the employee claiming discrimination is in the majority, however, in the 6th Circuit they must not only show disparate treatment, but also must show "background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority."

Which brings us to the story of Marlean Ames, a straight woman who sued the Ohio Department of Youth Services for sex discrimination under Title VII claiming that her lesbian supervisor discriminated against her because of her sexual orientation. Ames claimed that OHYS passed her over for a promotion, demoted her, and promoted a gay man to her former position.

DEI programs continue to be a lawsuit target

Major League Baseball. NASCAR. Starbucks. McDonald’s. Morgan Stanley, American, United and Southwest Airlines. America First Legal, a conservative group led by Stephen Miller, has targeted each of these for their “illegal” practices of hiring non-Whites and females.

In its most recent letter to the EEOC, urging it to investigate American Airlines, AFL cited the following as evidence of “unlawful employment practices” —

$2.6 million reasons why it’s illegal to fire a gay employee

Yesterday, a federal jury in Columbus returned a $2.6 million verdict in favor of Stacey Yerkes, a former Ohio State Highway Patrol employee who claimed that she was constructively discharged (forced to quit based on intolerable and unreasonable working conditions) because of her sexual orientation.

X marks the spot

There's nothing inherently illegal about naming one of your conference rooms "s3xy." If, however, your company has a history of allegations of sexual harassment and other sex discrimination, it's not the wisest choice.

"s3Xy" is among the names X (née Twitter) chose to rebrand the conference rooms inside its corporate offices. X's sister companies, SpaceX and Tesla, have a long history of defending sexual harassment lawsuits (and allegedly retaliating against the victims). All of these companies have one thing in common — Elon Musk.

Intentional misgendering IS sexual harassment

Jane works as a cashier at a donut shop. She is a transgender female who identifies by a female name and female pronouns. Her supervisor, Lisa, however, refuses to use Jane's preferred gender. She uses Jane's male legal name, male pronouns, and "dude" when referring to her, despite Jane's frequent requests for her to use female pronouns and the preferred female name. Lisa would similarly encourage customers not to use Jane's preferred name or pronouns.

Did Lisa create a hostile work environment based on Jane's sex? 

You bet she did.

Dress codes and gender biases

Women are prohibited from showing their bare arms.

Women are required to cover their dress with a second layer.

These are two new rules the Missouri House of Representatives enacted for its current term. It did not enact any new dress code policies for men. That's a big discriminatory problem. 

B-i-t-c-h spells dismissal

We're a team, we need to work together. Maybe we need to have a department meeting where we workshop with each other and really get to know each other. There's going to be days where you're going to be a B-I-T-C-H and there's going to be days where [the female servers] [are] going to be anxious and flip out and you need to be able to calm them down and get them what they need and not taking things personally so that they don't reflect of an image of you that may not be fully accurate.

That's what Tina Braunstein, a bartender working at The Plaza Hotel, claims one of her supervisors, Martin Mariano, told her during her 60-day review. When the hotel terminated her employment shortly thereafter and during her probationary period, she pointed to Mariano's spelling of "b-i-t-c-h" as evidence of his sexually discriminatory motive.