This past month, the Department of Justice issued guidance on Diversity, Equity, and Inclusion (DEI) for Funding Recipients, but every employer and employee (regardless of government funding) should take notice of this guidance because it explains a lot of acts that give rise to a reverse discrimination lawsuit and many employees now seem to have a good case.
Federal law prohibits discrimination on the basis of protected characteristics like race, sex, and religion, and if you object to a policy you believe is discriminatory, you are legally protected from retaliation. The DOJ’s new guidance clarifies that all discrimination, including “reverse discrimination” is illegal, even when done with good intentions under a DEI label.
This means that policies giving preferential treatment based on race or sex in hiring, promotions, or contracting are likely unlawful. Watch out for “diverse slate” mandates or quotas in hiring, as these are specifically called out by the DOJ as problematic.
The government is also scrutinizing seemingly neutral terms like “cultural competence” when they are just used as a substitute for race. Notably, DEI training that segregates employees by race or promotes stereotypes can create a hostile environment and violate federal law. The main takeaway is clear: workplace policies must ensure equal opportunity for everyone, without exception, and calling a discriminatory policy DEI does not protect it from constituting actionable discrimination.