On July 29, 2025, Attorney General Pam Bondi issued a memorandum titled “Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination.” The memorandum purports to offer “guidance” and “Best Practices” to recipients of federal funding, including “non-binding suggestions to help entities comply with federal antidiscrimination laws and avoid legal pitfalls.” The Attorney General’s memorandum follows Executive Order 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”), which calls for “ending illegal discrimination and preferences, including DEI” in the private sector, as well as two “technical assistance” documents titled “What You Should Know About DEI-Related Discrimination at Work” and “What To Do If You Experience Discrimination Related to DEI at Work” issued by the Equal Employment Opportunity Commission (“EEOC”). We previously discussed EO 14173 here and the EEOC technical assistance here.
The stated aim of the Attorney General’s memorandum is to “clarif[y] the application of federal antidiscrimination laws to programs or initiatives that may involve discriminatory practices,” including those labeled as “DEI” programs. Based on DOJ’s interpretation of broad aspects of the Equal Protection Clause of the Fourteenth Amendment and Title VI, Title VII, and Title IX of the Civil Rights Act of 1964, the memorandum identifies five categories of what it describes as “unlawful practices.” These include (1) granting preferential treatment based on protected characteristics; (2) using facially-neutral “proxies” for protected characteristics; (3) separating or restricting access to programs, activities, or resources based on protected characteristics; (4) making employment, contracting, or program participation selection decisions based on protected characteristics; and (5) facilitating training programs that may promote discrimination or hostile environments. The memorandum lists examples of potentially discriminatory practices and “best practices” to “assist entities in avoiding legal pitfalls and upholding equal protection for all.” Although these activities largely mirror practices previously highlighted in the EEOC’s technical assistance, the majority of the examples describe hypothetical practices at educational institutions or “federally funded” organizations.
As explained in the memorandum itself, the guidance does not impose any “mandatory requirements” on entities, including those that receive federal funding. While the guidance does not carry the force and effect of law or change existing law, it confirms with greater clarity certain activities related to DEI that DOJ, Congress, and other regulators may be inclined to investigate as unlawful under federal antidiscrimination law – as underscored by the recent Senate Judiciary Committee hearing on DEI practices.
Key Takeaways
- While the memorandum is styled as non-binding guidance, it reflects DOJ’s expansive position regarding the lawfulness of several common components of corporate DEI efforts.
- Many of the practices that DOJ has characterized as potentially unlawful have not been clearly addressed in existing case law, underscoring the need for careful legal review. Prudent companies should continue to ensure that DEI programs align with federal courts’ interpretations of antidiscrimination law.
- Recipients of federal funding should consider reviewing the guidance with counsel – particularly DOJ’s suggestion to incorporate nondiscrimination clauses in “grant agreements, contracts, or partnership arrangements.”
If you have any questions concerning the material discussed in this client alert, please contact the members of our employment, government contracts, congressional investigations, or white collar investigations and defense practices.