Justice Department Releases Guidance on Unlawful Discrimination
The Department of Justice issued a memo to all federal agencies detailing new guidance for federal funding recipients regarding their legal obligations under federal antidiscrimination laws. The guidance includes recommendations on best practices and examples of diversity, equity, and inclusion programs that may violate federal law.
Although it is not legally binding, the guidance may serve as a good indicator of the types of policies and practices that could draw the scrutiny of federal regulators, including on issues that have not yet been fully settled by the federal courts.
The guidance provides a brief overview of applicable federal laws and a non-exhaustive list of practices that could jeopardize federal funding. According to the guidance, such practices may include:
- Preferential treatment based on race, gender, or other protected characteristics, including race-based scholarships or programs, preferential hiring or employment practices, and exclusive access to facilities or resources based on race or ethnicity.
- “Unlawful proxies,” defined as “using ostensibly neutral criteria, [such as geographic location or socioeconomic status], that function as substitutes for explicit consideration of race, sex, or other protected characteristic” when such criteria are intended to advantage or disadvantage individuals based on protected characteristics. Examples include using “cultural competence requirements,” geographic or institutional targeting, and statements or narratives on diversity or overcoming obstacles when such policies are intended to serve as proxies for race or other protected characteristics.
- Segregation based on protected characteristics, except in instances designed to maintain sex-segregated athletic competitions or shared spaces such as bathrooms or locker rooms. Examples include race-based training sessions, segregation in facilities or resources, “diverse slate” policies in hiring, and race- or sex-based program eligibility rules.
- Training programs that promote discrimination or may create a hostile environment.
According to the guidance, best practices include:
-
-
Ensuring inclusive access;
-
Focusing on skills and qualifications;
-
Abstaining from using neutral criteria with the intent to achieve discriminatory results and scrutinizing neutral criteria for “proxy” effects;
-
Documenting legitimate rationales when selecting criteria for programs that confer advantages and disadvantages;
-
Eliminating diversity quotas;
-
Avoiding exclusionary training programs;
-
Including nondiscrimination clauses in third-party contracts and monitoring compliance; and
-
Establishing anti-retaliation procedures and safe reporting mechanisms.
-
For more information, please contact:
Jody Feder