New U.S. Attorney General Lays Out Broad DEI Termination Plans

The comings and goings from Washington, D.C., these days are certainly following the script of the new U.S. Presidential administration.

On Tuesday, Jan. 21, a memo from the acting director of the U.S. Office of Personnel Management (OPM) instructed the heads and acting heads of departments and agencies to terminate internal diversity, equity and inclusion (DEI) programs. The directive was meant to comply with President Donald Trump’s first-day Executive Order 14173, “Ending Radical and Wasteful Government DEI Programs”.

On Wednesday, Feb. 5, U.S. Attorney General Pam Bondi amplified the message. In two memos addressed to “all government employees,” Bondi laid out plans to end DEI initiatives at not just the Department of Justice (DOJ) but also private employers and educational institutions.

(Editor’s note: WorldatWork recently switched its usage of the terms “diversity, equity and inclusion” and “diversity, equity, inclusion and belonging” to “equitable and diverse workplaces.” While these terms and related strategies remain core to the association’s mission, they have become polarizing in some audiences and organizations where our members work. This polarization can detract from our broader goal: fostering workplace equity.)

DOJ to Broadly Target DEI

The first Bondi memo, titled “Ending Illegal DEI and DEIA Discrimination and Preferences,” is of most note to the WorldatWork community since it calls out “[the] promise of equality for all Americans” — not just government leaders and employees — and formally directs the DOJ’s Civil Rights Division to “investigate, eliminate and penalize illegal DEI and DEIA [diversity, equity, inclusion and accessibility] preferences, mandates, policies, programs and activities in the private sector and in educational institutions that receive federal funds.”

The memo lays out requirements for the Civil Rights Division (CRD) and the Office of Legal Policy (OLP) to jointly submit a report by March 1 that lists recommendations for enforcing federal civil rights laws and “taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences.”

It is interesting to note that the word “encourage” comes one sentence after the words “investigate, eliminate and penalize.”

Bondi stated the CRD/OLP report must comply with Executive Order 14173 by addressing:

“Key sectors of concern within the department’s jurisdiction”;
“The most egregious and discriminatory DEI and DEIA practitioners in each sector of concern”;
“A plan including specific 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 and for up to nine potential civil compliance investigations of entities that meet the criteria outlined in Section 4(b)(iii) of Executive Order 14173”;
“Additional potential litigation activities (including interventions in pending cases, statement of interest submissions and amicus brief submissions), regulatory actions and subregulatory guidance”; and,
“Other strategies to end illegal DEI and DEIA discrimination and preferences and to comply with all federal civil rights laws.”

“The Department of Justice is committed to enforcing all federal civil rights laws and ensuring equal protection under the law,” Bondi wrote. “As the United States Supreme Court recently stated [in the case Students for Fair Admissions v. Harvard], ‘eliminating racial discrimination means eliminating all of it.’”

A footnote on the memo stated the DOJ is focused on programs that “discriminate, exclude or divide individuals based on race or sex” and is not intended to prohibit “educational, cultural or historical observances ... that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.”

Targeted entities include publicly traded corporations, large nonprofit corporations or associations, foundations with assets of $500 million or more, state and local bar and medical associations, and institutions of higher education with endowments greater than $1 billion.

Toward educational agencies, colleges and universities that receive federal funds, the DOJ will “work with the Department of Education to issue directions, and the Civil Rights Division will pursue actions, regarding the measures and practices required to comply with Students for Fair Admissions.”

The DOJ has enforcement authority under Title VI of the Civil Rights Act (which prohibits race discrimination by recipients of government funds) and the False Claims Act (applicable to government contractors and others who make payment claims to the government, noting false compliance certifications with payment conditions like the condition specified in the Executive Order). It also enforces Title VII (which prohibits employment discrimination), but only with respect to state and local government entities.

Pundits Respond to Memo

Legal and government observers have begun to comment on the first Bondi memo.

In an article published Thursday, Feb. 6, in HR Brew, David Glasgow, a lawyer and executive director at the Meltzer Center for Diversity, Inclusion, and Belonging at New York University School of Law, stated, “This is a vicious bullying tactic aimed at making DE&I advocates and pro-DE&I organizations cower in fear.” He added the Bondi directive is “a shocking and lawless escalation of the bullying approach that this administration has already taken on DE&I issues,” and said private employers would have grounds for a constitutional challenge, should these threats come to fruition.

“It will be up to each company to choose how it responds, but I would urge leaders to continue their lawful DE&I activities,” Glasgow said.

In an opinion article for Bloomberg, author and Harvard professor Noah Feldman wrote, “The memo is unlikely to generate a significant number of lawsuits against real-world companies. But it will speed up the already-underway process of corporations abandoning or at least rebranding their DEI efforts.”

Google announced Wednesday, Feb. 5, it would no longer use diversity targets in hiring and would evaluate its other DEI initiatives, though it will continue to have resource groups for staff from underrepresented groups. Other companies — including Target, Amazon, Meta and McDonald’s — previously said they would roll back their related programs.

DOJ to Internalize Related Actions

The second Bondi memo, titled “Eliminating Internal Discriminatory Practices,” was sent to all DOJ employees and is more of a next-steps document that acts on Executive Order 14173 and the subsequent Jan. 21 OPM memo.

Under this directive, DOJ “components” must “thoroughly evaluate consent decrees, settlement agreements, litigation positions (including those set forth in amicus briefs), grants or similar funding mechanisms, procurements, internal policies and guidance, and contracting arrangements.”

Toward mobilizing the strategy, Bondi wrote, “There is no place in these materials for race- or sex-based preferences, diversity hiring targets or preferential treatment based on DEI- or DEIA-related criteria. All department materials that encouraged or permitted race- or sex-based preferences as a method of compliance with federal civil rights laws are rescinded and will be replaced with new guidance affirming that equal treatment under the law means avoiding identity-based considerations in employment, procurement, contracting or other department decisions.”

By March 15, DOJ components must comply by:

“Confirming the termination, to the maximum extent allowed by law, of all DEI, DEIA and ‘environmental justice’ programs, offices and positions (including but not limited to ‘Chief Diversity Officer’ or similar positions); all ‘equity action plans,’ ‘equity’ actions, initiatives or programs; all ‘equity-related’ grants or contracts; and all DEI or DEIA performance requirements for employees, contractors, suppliers, vendors or grantees”;
“Identifying agency or department DEI, DEIA or ‘environmental justice’ positions, committees, programs, services, activities, budgets and expenditures in existence on November 4, 2024, and providing an assessment of whether these positions, committees, programs, services, activities, budgets and expenditures have been misleadingly relabeled in an attempt to preserve their pre-November 4, 2024, function”;
“Identifying federal contractors, suppliers, vendors and grantees who have provided DEI training or DEI training materials to agency or department employees since January 20, 2021”;
“Identifying federal grantees who received federal funding to provide or advance DEI, DEIA or ‘environmental justice’ programs, services or activities since January 20, 2021”;
“Assessing the operational impact (e.g., the number of new DEI hires) and cost of the prior administration’s DEI, DEIA and ‘environmental justice’ programs and policies; and,
“Recommending actions to align department programs, activities, policies, regulations, guidance, employment practices, enforcement activities, contracts (including set-asides), grants, consent orders and litigating positions with requirement of equal dignity and respect.”

Editor’s Note: Additional Content

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