The Justice Department (DOJ) released important, sweeping guidance regarding what the Justice Department views as “unlawful discrimination” under Titles VI and VII of the Civil Rights Act of 1964, Title IX of the Higher Education Act, and the Equal Protection Clause the 14th Amendment to the U.S. Constitution. The guidance clarifies the application of “federal antidiscrimination laws” to “programs or initiatives that involve discriminatory practices, including those labeled as Diversity, Equity, and Inclusion (DEI) programs.” DOJ says that the best practices in the document are “not mandatory requirements but rather practical recommendations to minimize the risk of violations.” They include a page of examples of impermissible discrimination arising from “proxies” that are “ostensibly neutral criteria that function as substitutes for explicit consideration of race, sex, or other protected characteristics.” The guidance emphasizes the significant legal risks of initiatives that involve discrimination based on protected characteristics. DOJ says this guidance is applicable to “public and private employers” and other entities subject to federal antidiscrimination laws—even if they do not receive federal funds—but emphasizes its application to “all entities that receive federal financial assistance” (contracts, grants, etc.). These entities are advised to treat the guidance as a tool to understand their “legal obligations” and to avoid “the revocation” of federal funding.
The new DOJ guidance also advises recipients of federal funds to “incorporate explicit nondiscrimination clauses in grant agreements, contracts, or partnership agreements, requiring third parties to comply with federal antidiscrimination law as interpreted by DOJ, and specify that federal funds cannot be used for programs that discriminate based on protected characteristics.” DOJ says recipients of federal funds should affirmatively “[m]onitor third parties” that are subcontractors, subgrantees, or otherwise receive federal funds through the recipient “to ensure ongoing compliance, including reviewing program materials, participant feedback, and outcomes to identify potential discriminatory practices.” DOJ further advises recipients of federal funds to “terminate funding for noncompliant programs” that act inconsistent with these obligations.
The guidance document is available here.