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The newly released memorandum from the attorney general provides new details and examples concerning what the Trump administration considers discriminatory diversity, equity and inclusion (DEI) practices.

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The guidance is directed at federal funding recipients, but it explicitly calls on private employers to review the document and ensure compliance with federal anti-discrimination laws.

The document complements previous guidance the Trump administration has released on specific DEI practices that it considers to be in violation of Title VII.

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On July 30, the Department of Justice (DOJ) issued a new memorandum from Attorney General Pam Bondi that provides further guidance on what DEI practices the Trump Administration considers unlawful discrimination. Although the memorandum is specifically for recipients of federal funding, it is directed at a much broader audience. The document refers to Title VII, states that it “clarifies the application of federal antidiscrimination laws,” and calls on entities subject to federal anti-discrimination laws, such as “private employers,” to review the guidance to ensure compliance with existing legal obligations. Accordingly, employers should familiarize themselves with the guidance and revise their internal DEI policies if necessary.

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Bondi’s memorandum is the latest guidance on what DEI programs and policies the federal government considers “illegal” and “discriminatory.” The document reiterates the baseline requirement that the Trump administration has referred to in other materials – that protected characteristics like sex and race cannot be used as a basis to provide preferential treatment in employment, activities, opportunities or benefits. But the memorandum also provides several new examples of practices that are “potentially unlawful.”

The guidance warns against efforts to hire individuals on any basis that could be tied to a protected characteristic through the use of what it refers to as “proxies.” In other words, utilizing facially neutral criteria or objectives that still result in advantages for individuals based on their protected characteristic is impermissible. For example, seeking out candidates from “underrepresented groups” or targeting specific geographic areas, institutions, or organizations primarily because of their racial or ethnic composition is not allowed.

The memorandum also discourages using questions in the application process that are tied to protected characteristics if job candidates will receive advantages based on their responses. It lists questions like “demonstrate cultural competence, lived experience, or cross-cultural skills” or asking candidates to submit a diversity statement. The memorandum even says questions that ask applicants to describe obstacles they have overcome that are tied to protected characteristics should not be used if the “narrative will be used as a proxy for advantaging that protected characteristic.”

The memorandum states that compelling employees to share “intimate spaces” like bathrooms with the opposite sex would “typically be unlawful.” It continues on to say that these kinds of policies risk creating a hostile environment under Title VII, particularly where they “compromise women’s privacy, safety, or professional standing.”

The legal theory that private individuals could bring a Title VII hostile work environment claim against an employer because it permits bathroom use based on gender identity is noteworthy. Under the Biden administration, the EEOC issued guidance that stated the opposite – that an employer may be liable for a hostile work environment if it denied a transgender employee access to the bathroom that corresponds with their gender identity. That guidance was issued after the Supreme Court found that gender identity and sexual orientation are protected by Title VII in <em>Bostock v. Clayton County</em>. A federal court judge has since struck that guidance down.

As in previous guidance documents, the memorandum states that DEI trainings may violate Title VII by creating a hostile environment where materials single out, demean or stereotype individuals, and notes that employees are protected from retaliation if they oppose such illegal practices. But this memorandum provides new examples of what the trainings cannot include:

Requiring participants to affirm specific ideological positions or “confess” to personal biases or privileges based on protected characteristics

Using stereotypes based on a protected characteristic, such as “all white people are inherently privileged,” “toxic masculinity,” etc.

Singling out particular groups as inherently racist or sexist

As we discussed in a <a href="https://www.bakerlaw.com/insights/trump-administration-issues-guidance-on-unlawful-dei-related-discrimination-in-the-workplace/" target="_blank" rel="noreferrer noopener">previously published article</a>, the DOJ and EEOC issued “technical assistance documents” in March outlining “unlawful DEI-related discrimination” in the workplace. The July 30 memorandum largely tracks what has been provided to date, though employers should review that guidance as well, as it is explicitly directed at employers, and ensure compliance with both. While the March and July documents are not formal regulations or statutes, and courts could take a different position on what constitutes illegal discrimination in employment, they do provide key insight into how the government intends to interpret and enforce Title VII. Accordingly, the most prudent course for the time being is for employers to incorporate the guidance into their comprehensive DEI audits and, where appropriate, modify their policies.

BakerHostetler’s Labor and Employment Practice Group is already working with dozens of clients on these kinds of audits and is ready to assist your organization as well.

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