DOJ Releases Additional Guidance Regarding Unlawful Discrimination

In a memo to all federal agencies dated July 29, 2025, “Guidance For Recipients of Federal Funding Regarding Unlawful Discrimination,” Attorney General Pam Bondi clarifies the Trump administration’s stance on illegal discrimination under federal law and includes “best practices” organizations should follow to help them ensure compliance.

While the memo is aimed at recipients of federal financial assistance (typically, grants), it notes that “state and local governments, and public and private employers” should also review the guidance to help them “avoid legal pitfalls.” It is perhaps the most detailed “roadmap” yet for how the administration approaches and interprets federal non-discrimination law.

The memo provides a detailed, but non-exhaustive list of policies and practices that the Department of Justice (DOJ) considers inherently suspect if not outright unlawful, emphasizing that they may or may not be described as “Diversity, Equity, and Inclusion” (DEI). It warns against the continuation or implementation of programs that are “DEI by another name,” including the use of “proxy” characteristics that are meant to stand in for legally protected characteristics such as sex or race.

Summary of Guidance

The memo is divided into five main areas of concern:

1. Programs that grant preferential treatment based on protected characteristics;
2. Policies that use facially-neutral proxies for protected characteristics;
3. Practices that segregate individuals based on protected characteristics;
4. Policies that unlawfully consider protected characteristics in selection decisions; and
5. Trainings that promote discrimination or hostile environments.

The guidance ends with DOJ-recommended best practices, including:

• Ensuring all programs, activities, and resources are open to all qualified individuals and do not exclude participants based on protected characteristics (except when “necessary where biological differences implicate privacy, safety, or athletic opportunity”);
• Basing selection decisions on measurable skills and qualifications;
• Discontinuing the use of policies designed to favor specific demographic groups, even if phrased using neutral language;
• Documenting the legitimate rationale for decisions and ensuring those reasons are consistently applied;
• Scrutinizing neutral criteria for whether they serve as proxies for protected characteristics;
• Eliminating diversity quotas, including for applicant pools;
• Ensuring all trainings are open to all and do not “segregate” participants or create a hostile environment by requiring participants to affirm ideological positions or “confess” biases or privileges;
• Including non-discrimination clauses in agreements with third parties; and
• Implementing non-retaliation policies for individuals who refuse to participate in potentially discriminatory programs or complain about them.

Key Takeaways

Notably, the guidance emphasizes that it is not enough to simply review and update policy language. Rather, the DOJ makes clear that organizations must “rigorously evaluate and document” facially-neutral criteria to ensure those criteria do not have “proxy effects.” By way of example, the guidance suggests that a program for “low-income students” must not target specific areas or populations to achieve racial or sex-based outcomes.

The best way to evaluate seemingly neutral criteria for proxy effects is through workforce analytics. Well-constructed statistical analyses of employment data help organizations determine the “effect” of employment policies and practices on all protected groups, allowing employers to confirm that neutral criteria are being applied appropriately by managers and decision-makers. The analyses can also highlight when neutral criteria “correlate with, replicate, or are used as substitutes for protected characteristics” such as race, gender or religion.

The memo also emphasizes the use of job-related criteria throughout. As a result, organizations should expect their job descriptions and selection criteria to be subject to closer scrutiny. Employers should consider whether and to what extent they need to leverage more formal job analyses and validation services to document their efforts to ensure that selection criteria are legitimately job-related.

Berkshire and our parent company, Resolution Economics, can help employers implement the best practices outlined by the DOJ. From job analysis to workforce analytics, our team of inter-disciplinary experts has decades of experience working with organizations to establish job-related qualifications and monitor workforce decisions to identify, correct and prevent unlawful preferential treatment. Now more than ever, it is critical that employers use workforce analytics to rigorously evaluate the effects of all employment policies and practices, even those that do not explicitly reference sex, race or other protected characteristics.