Editor's Note
DEI Is for Everyone
The new Attorney General is going after "illegal DEI." But there's no such thing because DEI is not discrimination. Diversity means everyone. Equity applies to everyone. Inclusion means everyone. DEI is for everybody.
To be "illegal," there has to be discrimination. To be discrimination, there has to be evidence of 1) employment decisions being made based on a protected factor like race or gender and 2) actual harm to someone resulting from employment decision.
DEI programs do not involve individual employment decisions and do not cause harm. DEI is about removing obstacles and getting everyone on the same playing field operating under the same rules and practices.
Most employment decisions involve both subjective and objective factors as well as gut instincts, emotions, and lots of other things that are difficult to define, quantify and measure. As long as someone meets the basic qualifications of the job, you can hire them or not hire them for any reason besides a protected factor. You can hire someone because you like their shoes. You can not hire someone because you disliked their shoes. It's completely arbitrary and possibly unfair; but it's not discrimination.
There has to be actual discrimination and harm before it's illegal. Suppose you hold a lunch and learn on navigating career paths in the organization. The attendees are largely women but it's open to everyone. No discrimination and no harm.
Now suppose that same program is titled "Navigating Career Paths for Women." This would likely get a rise out of someone claiming it excluded men. But it's not excluding anyone; the focus is simply on the challenges women face. It would be a great thing for all employees and managers to understand regardless of their gender. Mostly though, it's unclear how having this program harms anyone.
You have to prove actual discrimination. And the farther the program or initiative is from a specific employment decision about a specific person, the harder it is to show how it harms anyone. Even if a program is designed to benefit people in a particular demographic, it won't necessarily harm people in other demographics. This is especially true when some demographics already have an advantage.
Still, if your programs or initiatives focus on a particular demographic group, it's probably wise to make them more inclusive. Why? Because avoiding investigations and litigation is smart, even when you are right and doing nothing wrong. And because DEI really is for everyone.
- Heather Bussing
On February 5, 2025, newly confirmed U.S. Attorney General Pam Bondi issued a memo to all U.S. Department of Justice Departments targeting private employers’ use of DEI initiatives. The memo is titled “Ending Illegal DEI and DEIA Discrimination and Preferences.” In it, AG Bondi states that the DOJ will “investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector and in educational institutions that receive federal funds.” As a legal basis for such action, AG Bondi cites to the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 206 (2023), which held that the college and university Defendants’ affirmative action programs violated the promises of equal protection under the U.S. Constitution. Despite the case not directly applying to Title VII, the quote relied upon by AG Bondi from that case is “eliminating racial discrimination means eliminating all of it.” This tracks President Trump’s recent Executive Orders targeting DEI and framing such programs as discriminatory in nature.
AG Bondi’s memo sets a deadline of March 1, 2025, for the DOJ’s Civil Rights Division and Office of Legal Policy to jointly submit a report outlining 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.” For educational institutions that receive federal funds, AG Bondi’s memo states that they “may not treat students worse than others in part because of race” and cites to Justice Gorsuch’s concurring opinion in Students for Fair Admissions.
While the fear of DOJ investigations and enforcement is justified for private employers, AG Bondi’s memo contains a critical footnote clarifying the actual scope of the memo. The footnote states, in its entirety:
This memorandum is intended to encompass programs, initiatives, or policies that discriminate, exclude, or divide individuals based on race or sex. It does not prohibit educational, cultural, or historical observances – such as Black History Month, International Holocaust Remembrance Day, or similar events – that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.
This footnote is important as it reinforces what should already be the standard practice. Prior to the second Trump Administration, DEI initiatives never meant to – and were not legally allowed to – discriminate or create division. Any DEI policy that did so was vulnerable to legal challenges under existing law. Employers with such policies could face “reverse discrimination” claims if benefits, promotions, or opportunities were withheld from an individual based on race or sex or any protected category. Additionally, private employers have constitutionally protected speech rights, meaning the federal government has never had the authority to restrict private employers’ “observances… that celebrate diversity, recognize historical contributions, and promote awareness.” Neither AG Bondi’s memo nor any Executive Order issued by President Trump can independently change that. Accordingly, all federal, state and local laws prohibiting discrimination and promoting DEI remain in full force and compliance is mandatory. However, due to the conflicting narratives, it is crucial that private employers work closely with their employment counsel to address any potential conflicts between existing laws and recent Executive Orders.
The Bottom Line
Private employers who have already ensured their DEI programs comply with existing law and do not engage in “illegal” discrimination are unlikely to be affected by AG Bondi’s memo. However, as the Trump Administration’s focus on DEI continues, private employers should review their initiatives carefully to ensure they do not involve “exclusion or discrimination.”
