Overview
On July 29, 2025, U.S. Attorney General Pam Bondi issued new guidance (“Guidance”) addressing the application of federal antidiscrimination laws to certain programs and practices, including diversity, equity, and inclusion (“DEI”) programs and efforts.[1] Directed at entities that receive federal funding, as well as any organization subject to federal antidiscrimination laws, this Guidance does not itself create new legal obligations but rather articulates Department of Justice (“DOJ”) enforcement priorities. It builds on the previous memoranda issued on February 5, 2025, in response to Executive Order 14173[2] (together, the “February 5 Memos”)[3] This new Guidance provides specific examples of potentially unlawful practices and outlines non-binding “best practices” intended to help companies and organizations mitigate legal risk.
Key Takeaways
Consistent with the February 5 Memos, the Guidance identifies the following practices as potentially in violation of federal antidiscrimination laws:
- Use of Protected Characteristics in Decision-Making: Considering protected characteristics—such as race, sex or any other protected traits—when making decisions about employment (e.g., hiring, promotions and other employment privileges and benefits), contracting (e.g., vendor selection) or program participation (e.g., internships, admissions, scholarships and training opportunities);
- Segregation Based on Protected Characteristics: Segregating individuals or groups with respect to programs, activities, facilities or resources on the basis of protected characteristics, with the exception made for sex-separated intimate spaces and athletic competitions; and
- Preferential Treatment and Use of Proxies: Intentionally employing facially neutral criteria—such as evaluating “cultural competence” or “lived experience”—to function as proxies for advantaging or disadvantaging individuals based on protected characteristics.
It also provides that recipients of federal funds are responsible for ensuring that those funds are not used to support discriminatory practices by contractors, grantees or other third parties acting on their behalf.
As best practices, the Guidance highlights, among others, prohibiting the use of demographic-driven selection criteria; focusing on objective, measurable skills and qualifications directly related to job performance or program participation; and documenting legitimate, nondiscriminatory rationales for decision-making.
Examples of Potentially Unlawful Practices
The Guidance provides an extensive but non-exhaustive list of practices that potentially violate Title VI and Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972 and/or the Equal Protection Clause of the Fourteenth Amendment, including the following:
- Race- or Sex-Based Programs and Initiatives: Programs and initiatives reserved exclusively for members who identify as being of certain racial or ethnic groups or of a particular sex, including scholarships, internships, mentorship programs, fellowships or leadership initiatives.
- Preferential Hiring or Promotion Practices: Prioritizing candidates from “underrepresented groups” for admission, hiring or promotion, in circumstances where the preferred “underrepresented groups” are determined on the basis of protected characteristics.
- Demographic-Driven Selection: Mandating the representation of specific groups in candidate pools, program participation or contract selection processes, including “diverse slate” policies.
- Segregated Programs, Activities Facilities or Resources: Designating programs, activities, facilities or resources exclusively for specific demographic groups, other than maintaining sex-separated athletic competitions and intimate spaces. This includes training sessions, exclusive lounges or workshops limited to certain demographic groups.
- Training: Training that through its content, structure or implementation, stereotype, exclude or disadvantage individuals based on protected characteristics or create a hostile environment. This includes content that singles out, demeans or stereotypes individuals based on protected characteristics.
In addition to these listed examples, the Guidance also cautions against using “ostensibly neutral criteria” as a stand-in for the explicit consideration of protected characteristics. For example, the Guidance suggests that requirements for candidates to explain “cultural competence,” “lived experience,” “cross-cultural skills,” “obstacles overcome” or to include “diversity statements,” may subject an organization to risks if included to evaluate candidates based on their racial or ethnic background rather than objective qualifications. The targeting of certain geographies, institutions or organizations primarily because of their racial or ethnic composition rather than other legitimate factors may pose similar risks.
Best Practices for Compliance
To mitigate risk, the Guidance recommends that federally funded entities adopt a range of best practices, including the following:
- Inclusive Access: Ensuring all workplace programs, activities, resources and trainings are open to all qualified individuals, regardless of protected characteristics, and avoiding segregating participants into groups based on protected characteristics.
- Avoid Demographic Targets: Avoiding the use of demographic goals or criteria designed to influence the representation of protected groups, and discontinuing policies that require the representation of race, sex or other protected groups among candidate pools, in interview panels and in final selections.
- Focus on Objective Criteria: Making selection decisions based on objective and measurable skills and qualifications directly related to the position, program or initiative.
- Review Neutral Criteria: Evaluating whether facially neutral criteria may serve as proxies for protected characteristics and adjusting as necessary.
- Document Legitimate Rationales: If using criteria that may correlate with protected characteristics, ensuring there is a clear, nondiscriminatory rationale documented.
- Third-Party Compliance: Including nondiscrimination clauses in grant agreements and contracts, including language specifying that federal funds cannot be used for programs that discriminate on the basis of protected characteristics, and monitoring compliance.
- Establish and Enforce Anti-Retaliation Procedures: Prohibiting retaliation against individuals who engage in protected activities, such as raising concerns or refusing to participate in potentially discriminatory programs, and providing confidential channels for reporting.
Next Steps
Companies and organizations, particularly those receiving federal funds, should continue to review, update and where necessary revise their policies and practices to ensure continued compliance.
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[1] See Off. of the Attorney General, “Memorandum for All Federal Agencies; Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination,” (Jul. 29, 2025), https://www.justice.gov/ag/media/1409486/dl?inline
[2] See Exec. Off. of the President, Exec. Order No. 14173: “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” (Jan. 21, 2025), https://www.whitehouse.gov/presidential-actions/2025/01/ending-illegal-discrimination-and-restoring-merit-based-opportunity/
[3] See Off. of the Attorney General, “Memorandum for All Department of Justice Employees; Eliminating Internal Discriminatory Practices,” (Feb. 5, 2025), https://www.justice.gov/ag/media/1388556/dl?inline; Off. of the Attorney General, “Memorandum for All Department Employees; Ending Illegal DEI and DEIA Discrimination and Preferences,” (Feb. 5, 2025), https://www.justice.gov/ag/media/1388501/dl?inline
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