The Department of Justice (DOJ) has issued a guidance document providing examples of workplace programs and practices it considers to constitute unlawful discrimination in the guise of diversity, equity and inclusion (DEI).
While officially aimed at federal contractors and other organizations receiving federal funds, the guidance provides insight into the DOJ’s current interpretation of discrimination law in ways relevant to private employers.
DEI programs have been under increased scrutiny since President Trump took office in January 2025, with multiple executive orders targeting “illegal DEI and DEIA policies.” The latest DOJ guidance bears many similarities to guidance issued by the Equal Employment Opportunity Commission (EEOC) in March.
Practices that may violate antidiscrimination law
According to the DOJ guidance, “the use of terms such as ‘DEI,’ ‘Equity,’ or other euphemistic terms does not excuse unlawful discrimination or absolve parties from scrutiny regarding potential violations.” The following practices, it states, may violate federal antidiscrimination laws:
- Hiring or promotion practices that prioritize candidates from underrepresented groups
- Access to facilities or resources based on race, ethnicity or another protected characteristic (with an exception for sex-separated spaces such as restrooms and locker rooms)
- Use of unlawful proxies for protected characteristics, which may include:
- “Cultural competence” requirements for job applicants
- Recruitment strategies that target specific geographic areas or organizations because of their demographic composition rather than other legitimate factors
- Required diversity statements and similar narratives likely to elicit responses tied to protected characteristics
- Training programs that require participants to separate into race- or ethnicity-based groups for discussions or exclude or penalize individuals based on protected characteristics
- Hiring policies that require interviewing a diverse slate of candidates
- Programs that use race, sex or another protected characteristic as a selection criterion
DOJ recommendations to avoid discrimination
The guidance recommends the following best practices to minimize the risk of violating discrimination laws:
- Open all workplace programs, activities and resources to all qualified individuals, regardless of protected characteristics.
- Base selection decisions on specific, measurable skills and qualifications directly related to job performance.
- Discontinue the use of demographic criteria and goals.
- Document clear, legitimate, nondiscriminatory rationales for hiring, promotion and other decisions.
- Scrutinize neutral criteria to ensure they are not proxies for race, sex or other protected characteristics.
