Quick Hits

• The DOJ recently issued guidance that defines DEI practices that the Trump administration considers to be illegal discrimination.
• The nonbinding guidance applies only to public and private employers that receive federal funds but may be helpful for all employers to review as to the federal government’s interpretation of the law and enforcement priorities.
• The guidance builds on two technical assistance documents issued by the U.S. Equal Employment Opportunity Commission (EEOC) in March 2025, including limitations on DEI training.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on or motivated by race, color, religion, sex, or national origin. The DOJ’s guidance also discusses Titles VI and Title IX of the Civil Rights Act of 1964, and the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, as applicable to governmental employers and public entities.

The DOJ’s guidance focuses on four primary areas of unlawful discriminatory policies and practices: (1) granting preferential treatment based on protected characteristics, (2) prohibited use of proxies for protected characteristics, (3) segregation based on protected characteristics, and (4) training programs that promote discrimination or hostile work environments.

In each of the four areas, the DOJ’s guidance devotes significant attention to examples of unlawful practices in higher education, such as race-based scholarships, creating physical safe-spaces for specific racial and ethnic groups, and a university internship program seeking students from underrepresented racial groups. Beyond higher education, the DOJ provides other examples in each of the four areas.

As to granting preferential treatment based on preferential characteristics, the DOJ maintains these practices are illegal for recipients of federal funding:

• race-exclusive opportunities, such as internships, mentorship programs, or leadership initiatives that reserve spots for specific racial groups, regardless of intent to promote diversity;
• prioritizing candidates from underrepresented groups for hiring or promotion where the preferred underrepresented groups are determined on the basis of a characteristic like race; and
• limiting access to a facility or resource based on race or ethnicity.

As to the prohibited use of proxies for protected characteristics, the DOJ states an “unlawful proxy” occurs when a federally funded entity intentionally uses neutral criteria that function as a substitute for explicit consideration of a protected characteristic. The DOJ provides examples of potentially unlawful proxies, including selection criteria that advantage candidates who have the experiences the employer associates with certain racial groups, such as cross-cultural skills and recruiting from certain locations or organizations chosen specifically because of their racial or ethnic composition.

The DOJ states segregation based on protected characteristics occurs when programs, activities, or resources (such as training programs) separate or restrict access based on protected characteristics by creating unequal treatment or reinforcing stereotypes. According to the DOJ, “unlawful segregation” may occur when training or program eligibility separates participants into groups based on their characteristics or sets eligibility criteria based on protected characteristics. The DOJ also states diverse slates and panels, as well as diverse supplier programs favoring women- or minority-owned businesses, are unlawful uses of protected characteristics.

The DOJ further states that failure to provide sex-segregated facilities based on biological sex can risk creating a hostile work environment under Title VII where they compromise women’s safety, privacy, or professional standing.

Consistent with merit-based executive orders issued by the Trump administration, the DOJ advises employers to base employment decisions on specific, measurable skills and qualifications directly related to job performance. It also advises employers to document the clear, legitimate rationales for employment decisions unrelated to protected characteristics. It instructs recipients of federal funds to ensure that federal funds do not support third-party programs that discriminate. The guidance also cautions against retaliation, noting that employees who object to or refuse to participate in discriminatory programs, trainings, or policies are legally protected from adverse actions like termination of employment or exclusion based on their opposition to those practices.

Next Steps

The DOJ’s guidance is nonbinding but is important for understanding the federal government’s enforcement priorities. The guidance may provide another tool to evaluate existing and potential practices and policies in light of an organization’s risk tolerance. Employers may want to lean into the law to assess their compliance obligations under all applicable federal, state, and local laws, especially since the guidance “urge[s]” employers “to review all programs, policies, and partnerships to ensure compliance with federal law,” and cease discriminatory practices.

The guidance reiterates that any DEI programs that could be considered as establishing unlawful quotas and preferences have been and remain the primary targets of the Trump administration. Private employers may wish to carefully review the best practices in this guidance and be on the lookout for further guidance from the EEOC and other federal agencies. With the EEOC’s quorum likely to be reestablished shortly, new guidance and rescission of older guidance is anticipated. Employers may wish to pay special attention to the best practices section for any potential actions needed or desired.