The Trump Executive Orders and Bondi Memorandum
The Trump Administration has taken a firm stance against what it characterizes as illegal diversity, equity, and inclusion (DEI) initiatives implemented by both private and government employers. On January 20, 2025, the President issued Executive Order (EO) 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing.” It directs the Office of Management and Budget, the Attorney General, and the Office of Personnel Management to coordinate the termination of all discriminatory federal government programs, including DEI and diversity, equity, inclusion, and accessibility (DEIA) policies, “under whatever name they appear.” While it does not extend expressly to private-sector employers, the order states the Administration’s policy that some (undefined) DEI policies violate federal civil rights laws.
The next day, the President issued EO 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” This order directs the Attorney General to submit a report with recommendations for enforcing federal civil-rights laws in the private sector, including “illegal” corporate DEI programs. The report must contain details on (1) key sectors of concern within the jurisdiction of the Department of Justice (DOJ); (2) the most “egregious and discriminatory DEI and DEIA practitioners”; (3) a plan for deterring the use of DEI that constitutes “illegal discrimination or preferences,” including proposals for civil compliance investigations; (4) potential litigation activities, regulatory actions, and subregulatory guidance; and (5) other strategies to end “illegal” DEI programs.
On February 5, 2025, newly confirmed Attorney General Pam Bondi issued a memorandum titled “Ending Illegal DEI and DEIA Discrimination and Preferences.” It directs the DOJ Civil Rights Division (CRD) to “investigate, eliminate, and penalize” illegal DEI and DEIA preferences in the private sector and in educational institutions that receive federal funds. The memorandum cites EO 14173 as well as Students for Fair Admissions Inc. (SFFA) – the 2023 Supreme Court case holding that race-based affirmative action in college admissions violates the Equal Protection Clause of the Fourteenth Amendment. Finally, the Attorney General has directed the DOJ, CRD, and Office of Legal Policy (OLP) to submit a joint report by March 1, 2025, addressing, among other things, how the DOJ may pursue civil and criminal investigations of private-sector DEI and DEIA programs.
Civil Enforcement by the DOJ
The DOJ may civilly, under the False Claims Act (FCA), or criminally, under 18 U.S.C. §§ 286–287, pursue entities that knowingly submit false or fraudulent claims to the government. It seems likely that the DOJ will focus its civil and criminal false claims jurisdiction, as will private relators (whistleblowers) under the FCA’s qui tam provision, on DEI/DEIA programs of government contractors that allegedly are not in compliance with the foregoing EOs.
The central federal laws governing employment discrimination in the private sector are Titles VI and VII of the 1964 Civil Rights Act and 42 U.S.C. § 1981. Titles VI and VII make it unlawful to discriminate on the basis of race, color, national origin, sex (including pregnancy and gender identity), or religion. They also make it unlawful to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. Section 1981, for its part, outlaws intentional discrimination on the basis of race in the creation and enforcement of contracts.
Damages are capped on claims under Titles VI and VII at $300,000 for employers with more than 500 employees, but there is no cap on damages for Section 1981 violations. When plaintiffs seek to bring an employment discrimination claim under Titles VI or VII, they must exhaust administrative remedies through the Equal Employment Opportunity Commission (EEOC), which may elect to bring a suit on behalf of the employee. There is no such administrative exhaustion requirement for Section 1981 claims, and the EEOC’s website explains that “Section 1981 is enforced by individuals, not a federal agency.”
For private-sector employers, the impact of the Attorney General’s DEI/DEIA memorandum is unclear. The DOJ does not have the authority to enforce Title VII against private employers – that authority resides with the EEOC. This lack of authority, however, does not prevent the DOJ from launching an investigation into a private employer’s DEI practices. The DOJ may decide to use tools such as administrative summons, subpoenas, or formal written requests for records to obtain information from employers and use the information it receives in response to convince the EEOC to directly launch investigations into private employers for employment discrimination.
Additionally, although the DOJ cannot directly enforce Title VII or Section 1981 against private employers, it may decide to direct its efforts toward filing amicus briefs criticizing employer DEI initiatives in civil actions brought by the EEOC or individual plaintiffs. For example, the DOJ and EEOC filed an amicus brief in Ames v. Ohio Department of Youth Service on December 16, 2024, urging the U.S. Supreme Court to reject a heightened pleading standard for plaintiffs in “reverse discrimination” cases.
Potential Criminal Enforcement
“To deter the use of DEI and DEIA programs or principles that constitute illegal discrimination,” the Attorney General’s memorandum also directs the Justice Department’s CRD and OLP to include “proposals for criminal investigations” in their joint report. We note that any decision by the DOJ to launch a criminal investigation into a private company’s HR policies would be novel and untested. No federal law passed by Congress purports to create direct criminal liability for a decision by a company to adopt policies related to DEI or other HR matters.
Without state action or a nexus to federal funds, and given the government’s presumed objective of pursuing both individual and corporate liability, a potential vehicle for criminal enforcement is 18 U.S.C. § 241, the so-called Conspiracy Against Rights statute. Section 241 makes it unlawful for “two or more persons to agree to injure, threaten, or intimidate a person in the United States in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States.” A decision to pursue such a charge would, however, be subject to attack by a named defendant.
Notably, the intracorporate conspiracy doctrine provides that a corporation cannot conspire with its employees, and its employees, when acting in the scope of their employment, cannot conspire among themselves. That should provide a defense to many defendants against such charges. But there is a recognized exception for criminal conspiracy allegations in the context of putative civil rights violations. This is true regardless of whether the criminal conspiracy arises under the federal criminal or civil code. While corporate officials responsible for executing – rather than adopting or promulgating – an allegedly offensive DEI policy may avoid conspiracy liability, the board and principal officers who formulated and adopted the policy could be targeted under Section 241, at least over an assertion of the intracorporate conspiracy doctrine, notwithstanding the reality that such charges would be unprecedented and subject to legal attack in court.
In addition, federal criminal conspiracy liability typically turns on the conspiracy’s object(s); namely, the criminal provision or provisions that the co-conspirators allegedly agreed to violate. But a Conspiracy Against Rights violation is unique insofar as, per the express language of Section 241, the object of the conspiracy must be a right or privilege secured by the Constitution or federal law, which may be – but is not required to be – a criminal statute. In other words, because the Conspiracy Against Rights statute criminalizes even private agreements to interfere with a right or privilege secured by law, a criminal object is not an essential element.
As a result, criminal enforcement of Section 241 may include application of the Fourteenth Amendment’s Equal Protection Clause, specifically as construed by the Supreme Court in SFFA. There, the Court held that using race as a factor in even private university admissions violates the Equal Protection Clause. Through invocation of the Conspiracy Against Rights statute, CRD’s Criminal Section, vested with an effectively exclusive federal mandate to pursue criminal civil rights violations, could seek to extend SFFA’s reasoning to the hiring practices of private corporations, arguing that using race as a factor in private hiring decisions similarly violates the Equal Protection Clause. To be clear, however, any attempt to do so would be subject to legal challenges from a named defendant.
Another potential Section 241 object is 42 U.S.C. § 1981, which codifies the right of individuals to make and enforce contracts without regard to race or gender. CRD’s Criminal Section could conceivably pursue prosecution under Section 241 by arguing that DEI/DEIA programs or policies obstruct the right to contract for employment granted under Section 1981. Similarly, while the Supreme Court has previously held that the application of Title VI of the Civil Rights Act of 1964 is limited to private employers that receive federal financial assistance, and that Title VII does not prohibit voluntary affirmative action programs by private employers, CRD’s Criminal Section could potentially argue that, because these laws confer a right to be free from pervasive racial and gender discrimination in employment and, further, because a criminal conspiracy charge under Section 241 does not require a criminal object, an alleged Title VI or VII violation could also potentially be used to support a Section 241 prosecution.
A Conspiracy Against Rights theory of criminal liability, however, particularly one involving noncriminal objects, is relatively rare, and multiple defenses likely apply. That is to say, an effort to bring a case based on this theory should be viewed as a legal stretch – if not an overreach. First, competing constitutional rights could be raised, including the First Amendment’s Free Speech and Freedom of Association Clauses. It could also be argued that private entities may not be prosecuted or sued civilly for violating the Fourteenth Amendment, which has long been held to require state action or at least a nexus to state action, rather than purely private conduct by a private employer. Similarly, although the DOJ does not have statutory authority to enforce Title VII and Section 1981 against private employers, it could try to use Section 241 as the vehicle to prosecute private employers for “illegal” DEI/DEIA programs by relying on Title VII and Section 1981 as the underlying basis for the DOJ’s Section 241 prosecution. Employers should nonetheless exercise caution when reviewing and implementing DEI policies in light of the uncertainty surrounding the practical impact of the memorandum.
Recommendations for Employers
Given the brevity of the February 5 memorandum, the upcoming March 1 report will provide employers with more insight into the Trump Administration’s planned course of action in the DEI sphere. In the meantime, employers should conduct an audit of all diversity programs, initiatives, and trainings to ensure that they comply with these new interpretations of federal law. Organizations may also consider the need to maintain a conservative approach toward their diversity policies and initiatives, and when making any internal or external communications relating to DEI. A challenge, of course, is that the Administration has not attempted to define with any specificity what is or is not an “illegal” DEI program.
The EOs and the memorandum do not make diversity initiatives illegal. The vast majority of U.S. companies have adopted some form of policy or practice that might fall under the umbrella of a “DEI policy,” and these have existed for years without a court finding them to be illegal. Rather, these documents from the new Administration communicate its increased scrutiny of those programs to ensure, it claims, that they comply with federal statutes. While employers should take a conservative approach to DEI policies and initiatives at this time, it is also important to remain mindful of existing obligations under federal antidiscrimination statutes, which remain in effect regardless of the Trump Administration’s actions.
Executive Order, Action & Proclamation Task Force
Alston & Bird's multidisciplinary Executive Order, Action & Proclamation Task Force advises clients on the business and legal implications of President Trump's Executive Orders.
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