Late last Friday, the Office of Management and Budget (OMB) issued OMB Memorandum M-25-33 entitled “Eliminating Funding of Unlawful Discrimination,” providing that entities receiving federal funding “must adhere to the equal protection principles under the Constitution and applicable Federal antidiscrimination statutes.” OMB Memo M-25-33 specifically directs federal agencies to adhere to recently-issued Department of Justice guidance when managing federal programs and overseeing federal funding recipients, which clarifies the application of federal antidiscrimination laws to programs or initiatives that may involve discriminatory practices, including those labeled as Diversity, Equity, and Inclusion programs. Notably, under the guidance, federal funding recipients are prohibited from implementing “unlawful policies and programs,” including preferential hiring or promotion practices that prioritize candidates from “underrepresented groups” and bypass “qualified candidates who do not belong to those groups.”
