August 29, 2025
The Changing Landscape of DEI: Fall 2025 Updates
DOJ Memo on “Illegal DEI”
On July 29, 2025, US Attorney General Pam Bondi issued a memorandum on “unlawful discrimination.” The memorandum—The Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination [Guidance]—is a continuation of President Trump’s goal of eliminating DEI in both the public and private sector.
The memo was issued soon after the launch of the US Department of Justice (DOJ) Civil Rights Fraud Initiative.
The Guidance does not directly change the legality of DEI practices, which still depend on existing anti-discrimination laws, but it does shed light on how the DOJ and other agencies are likely to interpret and enforce existing laws.
The 5 Categories of “Illegal DEI”
According to the Department of Justice Guidelines, these five types of DEI practices are unlawful.
1. Granting Preferential Treatment Based on Protected Characteristics
Overview: Providing opportunities or benefits based on race, sex, or other protected traits in a way that disadvantages others is unlawful, even if framed as promoting diversity.
Examples from the memo:
- Race-based scholarships (e.g., “Black Student Excellence Scholarship”)
- Hiring practices that prioritize “underrepresented groups” over more qualified candidates
- Facilities like “safe spaces” designated for exclusive racial groups
“This extends to any race-exclusive opportunities, such as internships, mentorship programs, or leadership initiatives that reserve spots for specific racial groups, regardless of intent to promote diversity. Such race exclusive programs violate federal civil rights law by discriminating against individuals based solely on their race.”
2. Prohibited Use of Proxies for Protected Characteristics
Overview: Facially neutral criteria may be unlawful if intentionally used to produce outcomes based on race, sex, or other protected traits.
Examples from the memo:
- Requiring “cultural competence” or “lived experienced” in a way that favors certain backgrounds
- Targeting recruitment at organizations or geographies due to racial composition
- Using “diversity statements” or “overcoming obstacles” prompts to advantage certain groups
“Unlawful proxies occur when a federally funded entity intentionally uses ostensibly neutral criteria that function as substitutes for explicit consideration of race, sex, or other protected characteristics. While these criteria may appear facially neutral, they become legally problematic under any of the following circumstances:
- They are selected because they correlate with, replicate, or are used as substitutes for protected characteristics
- They are implemented with the intent to advantage or disadvantage individuals based on protected characteristics”
3. Segregation Based on Protected Characteristics
Overview: Separating individuals based on race, sex, or other traits in facilities, training, or programs is generally unlawful—even when intended to promote inclusion.
Examples from the memo:
- Race-specific training sessions (e.g., “Black Faculty Caucus”)
- BIPOC-only lounges or study areas
- Restricting DEI workshop eligibility to certain racial groups
- Allowing transgender women in female-only intimate spaces or sports teams where it compromises others’ rights
4. Use of Protected Characteristics in Candidate Selection
Overview: Using race, sex, or other traits to influence hiring, contracts, or program acceptance violates federal law.
Examples from the memo:
- Mandating “diverse slates” in interview pools
- Prioritizing contracts for minority- or women-owned business without legal justification
- Setting participant quotes in internships or fellowships based on race or gender
5. Training Programs that Promote Discrimination or Hostile Environments
Overview: DEI trainings that stereotype or demean individuals based on protected traits may violate federal law.
Examples from the memo:
- Trainings stating “all white people are inherently privileged”
- Content promoting ideas like “toxic masculinity”
- Mandatory ideological affirmations or bias ‘confessions’ based on race or sex
How are Employers Responding?
Employers shifted recruiting practices in light of the SCOTUS affirmative action ruling in 2023, then again after President Trump’s first executive orders.
The Biggest Changes from this Memo
1) Targeting of proxies for race
2) Clarity into Department of Justice thinking
In light of all changes, employers are taking actions, including:
- Reconsidering conference strategy
- Standardizing candidate ratings
- Stopping use of diversity slates
- Revisiting HBCU strategy
- Intervening at top-of-funnel to build more representative talent pools
- Revising programs & proxies to be inclusive to all
- Focusing on inclusion, regardless of background
