Refining Diversity Programs – Greater Federal Specificity

In this episode, Brach Eichler’s Labor & Employment team discusses the latest federal guidance on workplace diversity programs. With the July 2025 Bondi memo narrowing what practices may violate non-discrimination laws, employers face new compliance challenges around DEI initiatives, training, and hiring practices. Learn what this means for organizations, especially those receiving federal funds, and why reviewing your programs with legal counsel is critical. 

📲 Read the full alert now at https://www.bracheichler.com/insights/refining-diversity-programs-greater-federal-specificity/

For more information about your organization’s diversity initiatives’ compliance with anti-discrimination law, please contact: Jay Sabin, Member, Labor and Employment Practice at 917-596-8987 or [e-mail]

*This is intended to provide general information, not legal advice. Please contact the authors if you need specific advice.

Episode Transcript

(00:00):
Thank you for tuning in to the Brach Eichler Talks podcast, where we

(00:03):
explore and discuss today's trending legal topics.
In this episode, we'll discuss a recent Labor and Employment alert from Brach Eichler titled
"Refining Diversity Programs, Greater Federal Specificity"…Since January 2025, when the
second Trump administration began, the federal government has trained its sights on "DEI

(00:23):
programs." Many of the government's early initiatives did not specify what types of programs would be considered illegal.
The closest came from the EEOC in March 2025 when it issued guidance that a DEI program may
be unlawful if it involves taking an employment action motivated in whole or in part by race,
sex, or another protected characteristic.

(00:47):
And that unlawful limiting, segregating, or classifying workers related to DEI can arise when
employers separate workers into groups based on race, sex, or another protected characteristic
when administering DEI or any trainings, workplace programming, or other privileges of
employment, even if the separate groups receive the same programming content or amount of employer resources.

(01:11):
The federal government has now published more specific guidance in the form of a July 29, 2025
memo from Attorney General Bondi to all federal agencies… Although this guidance is limited to
recipients of federal funding, many private employers receive federal funding, e.g.
Medicare and Medicaid, and its principles apply to all federal nondiscrimination laws… The

(01:34):
Bondi memo identifies the following four types of diversity related actions that violate federal
nondiscrimination law unless they meet very narrow exceptions.

1. Preferential treatment. Cited examples include (01:44):
a.
Financial rewards scholarships available to persons based solely upon their protected
characteristics, such as a woman only scholarship, b.
Prioritizing job applicants based upon their protected
characteristics, such as requiring a diverse slate of candidates, and C.

(02:04):
Providing resources based solely upon a person's protected characteristics… 2.
Using proxies. Some employers have, in lieu of considering a person's protected characteristic
, come to rely upon information about the person that may correlate with the person's protected characteristic.
Per the Bondi memo, such proxies are equally illegal when the proxy was selected because it

(02:28):
correlates with a protected characteristic and the employer implements the proxy with the intent
to advantage or disadvantage individuals based on protected characteristics… 3.
… Segregation. Similar to providing resources based solely upon a person's protected
characteristics, illegal segregation arises according to the Bondi memo when an employer forces

(02:51):
employees to differentiate themselves based upon their protected characteristics…Cited
examples include a DEI training group where participants must separate into race based groups (e.g.
"Black Faculty Caucus" or "White Ally Group") for discussions prohibiting individuals of other
races from participating in specific sessions, and awarding set aside contracts to a contractor

(03:14):
based solely on the contractor's protected characteristic, such as being female or minority owned.
4. Training programs. Training programs that stereotypes exclude or disadvantage
individuals based on protected characteristics may be illegal if they create a hostile work
environment or impose penalties for dissent.

(03:36):
Claiming that something may be illegal is far different than a
judicial decision finding that a particular practice was illegal.
Nonetheless, employers, in consultation with counsel, should carefully review the Bondi memo
as part of continuing efforts to refine workplace diversity
programs in this new enforcement climate.

(03:57):
For more information about your organization's diversity initiatives compliance with anti
discrimination law, please contact Jay Sabin, Esq.
, Member, Labor and Employment Practice at 917-596-8987 or [e-mail].
Don't forget to subscribe to our podcast on Spotify, Apple Podcasts, and YouTube.

(04:19):
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For more information and resources, visit bracheichler.com.
This is intended to provide general information, not legal advice.
Please contact the authors if you need specific legal advice.
Brach Eichler LLC is a full service law firm based in Roseland, New Jersey with over eighty attorneys.

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