What DEI Practices Are Now Considered Discriminatory by the DOJ?

The latest guidance from the U.S. Department of Justice (DOJ) clarifies that many common workplace Diversity, Equity, and Inclusion (DEI) programs may constitute unlawful discrimination if they use protected characteristics as a basis for decision-making. To avoid legal risk, employers must base all employment actions on job-specific qualifications and ensure programs are open to all employees equally.

This guidance, while directed at federal contractors, signals a significant shift in enforcement priorities that all private employers should heed. It aligns with recent executive orders and Equal Employment Opportunity Commission (EEOC) guidance, placing DEI initiatives under intense legal scrutiny.

What Specific DEI Practices Could Be Unlawful?

The DOJ states that using terms like "DEI" or "Equity" does not shield practices from legal scrutiny. The guidance identifies several high-risk activities that may violate federal anti-discrimination laws. Unlawful practices often involve making decisions based on race, sex, or other protected characteristics rather than individual merit.

Key examples include:

• Hiring or Promotion Preferences: Giving preferential treatment to candidates from underrepresented groups.
• Exclusive Access: Providing resources, mentorship, or training programs based on protected characteristics (with standard exceptions for sex-separated facilities like restrooms).
• Diverse Slate Policies: Mandating that a certain number of candidates from specific demographics be interviewed.
• Problematic Proxies: Using criteria that act as a substitute for protected classes, such as:
  • "Cultural competence" requirements for applicants.
  • Recruitment targeting specific geographic areas solely for their demographic composition.
  • Required diversity statements that are likely to elicit responses tied to protected characteristics.
• Segregated Training: Programs that separate employees into race- or ethnicity-based groups for discussions.

How Can Employers Minimize Legal Risks?

The DOJ recommends a return to fundamental, objective employment practices to ensure compliance. The core principle is to focus on individual qualifications and avoid any form of differential treatment based on protected characteristics. The most critical step is to base all selection decisions on specific, measurable skills directly related to job performance.

Here are the DOJ's recommended best practices:

• Universal Access: Open all workplace programs, activities, and resources to all qualified individuals.
• Skills-Based Criteria: Define and document the exact skills and qualifications needed for a role, ensuring they are directly tied to job performance.
• Eliminate Demographic Goals: Discontinue the use of demographic criteria, quotas, or goals in hiring and promotion.
• Document Rationales: Maintain clear records showing that employment decisions were based on legitimate, non-discriminatory factors.
• Scrutinize Neutral Criteria: Audit seemingly neutral job requirements to ensure they are not acting as proxies for race, sex, or other protected characteristics and do not have a disparate impact (an unintentionally discriminatory effect on a protected group).

By implementing these focused, objective practices, organizations can build a talented and diverse workforce while operating within the current legal framework. The key is to create inclusive processes that evaluate every candidate and employee as an individual.