In a February 5 memorandum to all Department of Justice (DOJ) employees, the recently confirmed Attorney General, Pam Bondi, directed the DOJ’s Civil Rights Division to “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.”
The Attorney General’s Order is an initial step toward implementing Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, issued on January 22. Executive Order 14173 calls, generally, for the end of “illegal” DEI preferences and discrimination with the stated goal being to “restor[e] merit-based opportunity” by eliminating diversity initiatives that preference a specific group based on gender, race, and ethnicity. The Supreme Court’s 2024 decision in SFFA v. President and Fellows of Harvard College is the Administration’s guide for determining whether an activity or initiative is an unlawful preference.
Executive Order 14173 also directed the Attorney General to work with every federal agency to identify up to nine “potential civil compliance investigations” of:
- Publicly traded corporations
- Large non-profit corporations or associations
- Foundations with assets of at least $500 million
- State and local bar associations
- State and local medical associations
- Institutions of higher education with endowments exceeding $1 billion
By March 1, 2025, the Civil Rights Division and the Office of Legal Policy must submit a report to the Attorney General identifying “key sectors” subject to the DOJ’s jurisdiction for an investigation of their DEI and DEIA programs, with a focus on the “most egregious and discriminatory DEI and DEIA practitioners” in each sector. The report must also suggest “steps or measures to deter the use of DEI and DEIA programs or principles that constitute illegal discrimination or preferences, including proposals for criminal investigations.”
In the wake of EO 14173 and Attorney General’s memorandum, employers should conduct comprehensive assessments of their DEI programs and initiatives to confirm that they are in compliance with the President’s Order and current legal precedent. Reviews should be conducted under the attorney-client privilege and results and actions taken, if any, should be documented.
