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On July 29, 2025, the United States Department of Justice promulgated a memorandum, aimed specifically at federal agencies and recipients of federal funding, regarding “unlawful discrimination practices.” Though the guidance is addressed to these groups, the memo stated that it should also be reviewed carefully by educational institutions, state and local governments, and public and private employers for unlawful practices. 

The memorandum reminds employers that federal antidiscrimination laws mandate that entities do not discriminate on the basis of race, color, national origin, sex, religion, etc., and that DEI programs may involve discriminatory practices. The use of terms such as “DEI” and "Equity” in programs could cause this administration to scrutinize such programs for what it terms “potential violations.” For example, using any protected characteristic as the basis for employment, program participation, resources, or benefits, could be unlawful. This also includes any “facially neutral criteria” including phrases like “lived experience,” as the administration believes that these are proxies for protected characteristics and could disadvantage some individuals. 

Federal antidiscrimination laws have long held that discrimination in employment on the basis of a protected characteristic is unlawful, so it can only be inferred that the administration is specifically targeting any programs that aim to give any kind of advantage whatsoever to someone based on protected characteristics. The memorandum specifies, for example, that any minimum quota for hiring is unlawful (which was always the case). 

Finally, the guidance specifically points out that individuals who object to or refuse to participate in such “discriminatory programs, trainings or policies” are protected from adverse actions based on their objection. 

Examples of such “unlawful practices” in the memo include race-based scholarships, programs, and even internships and mentorship programs for minorities or women. Any prioritization of candidates from “underrepresented groups” in hiring or promotion is also specifically laid out as an unlawful practice. In addition, any employee resource groups, such as LGBTQ+ resource groups, allegedly “violate federal law.” In addition, any DEI training programs that separate participants into “race-based groups” could be unlawful, per the guidance, as well as any statements “stereotyping individuals based on protected characteristics,” such as discussing white privilege. Learn more about employer sponsored ERGs in this Employers Council article.  

Some of the best practices highlighted in the memorandum include: ensuring inclusive access to all workplace programs, activities, and resources; basing selection decisions on specific, measurable skills and qualifications directly related to job performance; evaluating whether criteria that appear neutral may serve as a proxy for any protected characteristic; explicitly requiring nondiscrimination clauses in third-party agreements; and prohibiting retaliation against individuals who engage in protected activities. 

 Employers should be mindful of this guidance when hiring, promoting, or creating programs in the workplace.  

 Employers Council members can contact us with questions regarding this memorandum. 

 Amanda Bauer is an attorney with Employers Council