DOJ Cautions Certain I&D Policies Violate Anti-Discrimination Laws

The U.S. Department of Justice (DOJ) released new guidelines on July 29, detailing its enforcement priorities for entities receiving federal financial assistance or that are otherwise subject to federal antidiscrimination laws, including educational institutions, state and local governments, and public and private employers and how they are to comply with federal anti-discrimination laws, particularly in how they practice diversity, equity, and inclusion (DEI). The DOJ called for these entities to avoid what it deemed illegal DEI practices, saying they discriminate against employees based on protected characteristics, such as race, sex, color, national origin, or religion. 

This information establishes new legal risks for federally funded, noncompliant entities, and presents an opportunity for all organizations to evaluate their own inclusion and diversity (I&D) programs to ensure accordance with the law. 

Toolkit: Managing Equal Employment Opportunity

Understand the Private-Sector Impact 

The guidance “clarifies the application of federal antidiscrimination laws to programs or initiatives that may involve discriminatory practices” and offers “non-binding” best practices on compliance with federal laws like Title VII of the Civil Rights Act of 1964 and other applicable laws. Examples include offering scholarships exclusive to members of particular racial groups or requiring a certain number of job candidates of a certain gender, race, ethnicity, or other protected characteristic in hiring pools.

Additionally, the DOJ has labeled some common job listing requirements — such as having “cultural competency” or “lived experience” — as “proxies” for race or other protected characteristics, calling them potentially illegal and discriminatory. This reflects the DOJ’s increasing attention to organizations using alternative terminology to describe I&D efforts, which it declares is not a ground for continuing so-called unlawful programs and practices.  

The guidelines also prohibit holding racially segregated training sessions and requiring employees to share “intimate spaces” — such as bathrooms or locker rooms — with others of the opposite biological sex, calling these practices unlawful risks to privacy and fairness.

Toolkit: Skills First at Work 

Spearhead Compliant I&D Programs

This development highlights the DOJ’s broader effort to discourage “unlawful DEI” practices it said violate federal anti-discrimination policy and result in the unequal treatment of employees and applicants. While these guidelines are directed toward federally funded entities, rather than the broader private sector, they represent an opportunity for all organizations to prevent legal issues before they occur by understanding the DOJ’s enforcement priorities. 

If gaps and risks have been identified, HR professionals should work collaboratively with their peers to revise policies and programs. Organizations should ensure that their employment practices prioritize equal opportunity for all, not criteria that promotes decision making based on protected characteristics. Ensuring that an organization’s practices are neutral, merit-based criteria that foster inclusion without violating federal anti-discrimination laws.  

For example, organizations can focus on outreach strategies that expand the applicant pool to underrepresented groups, without mandating quotas — all while maintaining a record of the decision-making process.

Use the following resources to balance cultivating diversity with upholding merit, creating truly diverse, inclusive, and legally compliant spaces: 

1. Implementing SHRM’s BEAM Framework for Inclusion

Follow SHRM’s Belonging Enhanced by Access through Merit (BEAM) Framework to audit your workplace’s I&D protocols, identifying potential legal risks and spotlighting areas to improve, both in compliance and cultural impact.  

2. Valuing Both Diversity and Merit in Hiring

Lower systemic barriers to career advancement by embracing inclusive, legally compliant hiring practices, such as introducing skills-based hiring, recognizing underutilized pools of talent, and creating a more inclusive definition of merit.  

3. How to Build Effective, Legally Compliant Inclusion and Diversity Programs

Use this step-by-step guide to understand the process of implementing I&D initiatives without compliance risks. Learn how to eliminate bias, delegate tasks effectively during the transition, and promote a culture of inclusivity across your organization.