The Department of Justice recently released guidance to ensure that recipients of federal funding do not engage in unlawful discrimination. The guidance clarifies that federal antidiscrimination laws apply to programs or initiatives that involve discriminatory practices, including those labeled as Diversity, Equity, and Inclusion (“DEI”) programs.
According to DOJ, entities that receive federal funds, like all other entities subject to federal antidiscrimination laws, must ensure that their programs and activities comply with federal law and do not discriminate on the basis of race, color, national origin, sex, religion, or other protected characteristics—no matter the program’s labels, objectives, or intentions.
The new guidance emphasizes the legal risks of initiatives that involve discrimination based on protected characteristics and offers non-binding best practices to help entities that receive federal funds avoid the risk of violations and the revocation of federal grant funding.
Best practices include:
- Ensure inclusive access
- Focus on skills and qualifications
- Prohibit demographic-driven criteria
- Document legitimate rationales
- Scrutinize neutral criteria for proxy effects
- Eliminate diversity quotas
- Avoid exclusionary training programs
- Include nondiscrimination clauses in contracts to third parties and monitor compliance
- Establish clear anti-retaliation procedures and create safe reporting mechanisms
Read the guidance here.