Business and Legal Insights

On February 5, 2025, her first day in office, Attorney General Pam Bondi issued two memos explaining steps being taken by the Department of Justice (DOJ) to implement President Trump’s Executive Order 14173 of January 21, 2025 entitled “Ending Illegal Discrimination and Restoring Merit Based Opportunity.”

The memos observe that the Executive Order provides that policies relating to “diversity, equity, and inclusion” (DEI) and “diversity, equity, inclusion, and accessibility” (DEIA) “violate” federal civil rights laws and “undermine our national unity.”

Accordingly, the February 5 memo, “Ending Illegal DEI and DEIA Discrimination and Preferences” addresses both private sector employers and educational institutions that receive federal funds. This memo requires the Civil Rights Division and the Office of Legal Policy to submit a report by March 1, 2025 that addresses, among other things, the following:

1. The identification of “key sectors of concern.”
2. The “most egregious and discriminatory DEI and DEIA practitioners in each section of concern.”
3. A plan to deter the use of DEI and DEIA “programs or principles” that constitute illegal discrimination or preferences, including “proposal for criminal investigations and for up to 9 potential civil compliance of investigations of entities meeting the criteria outlined in the executive order.  Note, such entities include publicly traded corporations, large non-profit corporations or associations, foundations with assets of $500 million or more, state and local bar and medical associations, and institutions of higher educations with endowments over $1 billion.
4. Additional potential litigation activities.
5. Other strategies to end “illegal DEI and DEIA discrimination.”

The second February 5 memo, “Eliminating Internal Discriminatory Practices,” directs all DOJ components to evaluate consent decrees, settlement agreements, litigation positions, grants or similar funding mechanisms, procurements, internal policies and guidance, and contracting arrangement” for compliance with the Executive Order, and rescinds and orders replaced any materials that “encouraged or permitted race- or sex-based preferences.” Further, any such updated preference is to narrow the use of “disparate impact” theories and emphasize that “statistical disparities alone do not automatically constitute unlawful discrimination.”

By March 15, 2025, each DOJ component is to submit a report to the Attorney General that: (1) confirms the termination of all DEI, DEIA and environmental justice programs, offices, and positions (including “chief diversity officers” or similar positions); (2) identifies agency or department DEI. DEIA or environmental justice positions, committees, programs, services, activities, budgets, and expenditures in existence on November 4, 2024 and whether they have been ”misleadingly relabeled;” (3) identifies federal contractors, suppliers, vendors, and grantees who have provided DEI training or DEI training materials to agency or department employees since January 20, 2021; (4) identifies federal grantees who received federal funding to provide or advance DEI, DEIA or environmental justice programs, services or activities since January 20, 2021; (5) assesses the operational impact (number of New “DEI hires”) and cost of prior administration’s DEI, DEIA and environmental justice programs and policies, and (6) recommends actions to align all aspects of the DOJ with “requirement of equal dignity and respect.”

This second memo also notes that, in preparing these reports, DOJ components should pay particular attention to ending any references to DEI and DEIA, including references to “unconscious bias,” “cultural sensitivity,” “inclusive leadership,” and any emphasis on “race- or sex-based criteria rather than merit.”

In a footnote, both memos note that they do not prohibit educational, cultural, or historical observances such as Black History Month, International Holocaust Remembrance Day, or similar events that “celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.” 

As explained above, the DOJ, under Attorney General Pam Bondi, has issued directives to implement President Trump’s Executive Order on DEI, targeting policies deemed discriminatory. It is important for businesses to consult their attorney to understand the implications of these changes and ensure compliance. For more information, please consult with labor and employment counsel or reach out to blog author Mary Ruth Houston or any member of the Shutts Labor and Employment Practice Group.