On her first day in office, Attorney General Pam Bondi issued a memo calling for a report on how the Department of Justice can target big companies’ diversity, equity and inclusion programs. The memo is unlikely to generate a significant number of lawsuits against real-world companies. But it will speed up the already-underway process of corporations abandoning or at least re-branding their DEI efforts.
Bondi’s DEI memo is one of a raft of opening day salvos on subjects like criminal investigations of lawyers who criminally investigated President Donald Trump, holding up federal grants for so-called “sanctuary cities” that refuse to cooperate with immigration authorities and firing Justice Department lawyers who refuse to sign briefs or work on cases they consider unlawful or immoral. All focus on issues Trump campaigned on. Only the DEI memo, however, directly follows a legal-cultural process triggered by the Supreme Court.
The Supreme Court’s role in the war on DEI began in June 2023, when the justices decided the landmark SFFA v. Harvard case. In that 6-3 decision, the court held it was unconstitutional and unlawful for universities to use racial diversity as a basis for admissions under Title VI of the Civil Rights Act of 1964.
Technically, the SFFA case applies only to educational institutions that are barred from discriminating under Title VI. However, the core logic of the decision — that the Constitution and civil rights laws require colorblindness — can easily be extended to workplaces barred from discriminating under Title VII of the same law.
A difficult case
For this reason, it’s not at all surprising that the Bondi memo simply assumes that companies are not allowed to use racial diversity as a rationale for employment decisions: That’s the standard conservative extension of the SFFA precedent. Indeed, in October 2022, long before the SFFA decision came down, I predicted that it would eventually be applied to the employment context.
However, as I also explained at the time, even companies proud of their DEI efforts are unlikely to acknowledge making specific employment decisions based on seeking to achieve racial diversity. Legally speaking, Title VII outlaws discrimination in employment decisions, not pro-diversity rhetoric. Even Bondi’s memo acknowledges that legal reality by targeting “illegal discrimination and preferences.” Any attempt to bring civil enforcement actions based on corporate speech alone would violate the free-speech rights of the companies under the First Amendment.
That’s why the investigations that Bondi’s memo foreshadows seem unlikely to lead to many actual lawsuits. A successful civil suit against a DEI program would have to prove that a company was making specific employment decisions on the basis of race or favoring employees in the workplace based on their race, sex, sexual orientation, transgender status, or other characteristics protected by Title VII. That would be a very difficult case to make in the real world.
Therefore, the evident purpose of the memo is to advance the culture war against DEI, not to generate a meaningful body of litigation.
