Department of Justice issues new antidiscrimination guidance

October 2025 employment law letter

Authors:

Austin Taylor and Martin J. Regimbal, The Kullman Firm

On July 29, 2025, the U.S. Department of Justice (DOJ) issued a memorandum for all federal agencies titled “Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination.” This memo directly applies to entities which receive federal funding, such as universities receiving federal grants or federally funded state agencies. In addition, the memo advises that entities subject to federal antidiscrimination laws—such as federal contractors and other private employers—review the DOJ’s guidance carefully to “ensure all programs comply with their legal obligations.” Let’s take a closer look.

Illegal diversity and DEI programs

The DOJ’s memo warns that many diversity, equity, and inclusion (DEI) programs may be unlawful, listing the following as examples of such unlawful practices:

Programs whose eligibility is determined by race;
Hiring or promotion practices intended to give preferential treatment on the basis of a protected status; and
Access to facilities or resources based on race or ethnicity.

The DOJ also cautions against the use of facially neutral criteria or other policies as proxies for protected characteristics. According to the memo, such proxies become unlawful when:

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