DOJ Hunt for Criminal Prosecution of DEI Unnerves Companies

The Department of Justice sent a chill through corporate America by signaling its intent to use criminal investigations to root out DEI practices in the private sector.

Newly minted Attorney General Pam Bondi’s directions follow President Donald Trump’s executive order requiring federal agencies to clamp down on companies’ diversity, equity and inclusion policies. Companies and their lawyers are now looking to the DOJ memo, dispatched late Wednesday, to parse which diversity practices and what language they need to eschew as they examine everything from specific initiatives to corporate culture to their public statements.

The specter of a criminal investigation looms large in the Bondi memo, which calls for a report within weeks specifying steps to deter discriminatory DEI practices, including proposals for criminal investigations and up to nine potential civil compliance investigations.

The new administration argues DEI policies and programs are themselves discriminatory. Bondi’s memo instructs the Department of Justice’s Civil Rights Division to launch a new mission to “investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities” in the private sector and at educational institutions that receive federal funds.

“It’s a ratcheting up that I don’t think was necessarily clear from the executive order,” said Mark Girouard, a labor attorney at Nilan Johnson Lewis.

The threat of criminal investigations comes as a slew of large, public companies have pulled back from their corporate diversity pledges following conservative attacks that say some DEI efforts place White, straight men at a disadvantage.

Companies are more worried than they were before the memo because the entire charge is illogical and the administration is trying to find problems that simply don’t exist, according to Vernā Myers, president of The Vernā Myers Company, a DEI consulting firm.

“At first it was going to civil, like we’re going to come against you, we’re going to sue you,” said Myers, who worked for Netflix as its first chief diversity officer from 2018 to 2023. “Now they’re talking about criminal—which is criminal.”

The Order

Businesses have been reviewing their diversity policies and statements since the Supreme Court’s 2023 decision barring affirmative action in college admissions. They’ve more recently accelerated internal legal checks of hiring, training, and other initiatives to make sure they don’t become a target of the new administration. But the DOJ order sets off heightened urgency for internal reviews, lawyers say.

Bondi’s order told the civil rights division and the office of legal policy to produce a report with recommendations “for enforcing federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences.” The order also signals the potential for the DOJ to intervene in pending cases through amicus briefs, for example, as well as possible regulatory action or guidance.

A footnote specifies that the memo doesn’t prohibit observances such as Black History Month or International Holocaust Remembrance Day, or similar events that “celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.”

The report is due in March 1, far sooner than the White House’s instruction of 120 days, or about four months. The order instructed the department to focus on “the most egregious and discriminatory DEI and DEIA practitioners.”

“The AG order and the executive order are tremendously ambitious,” said Austin Evers, associate deputy attorney general during the Biden administration and now a partner at Freshfields. While the AG memo mirrors the executive order closely, Evers said the two directives together “reflect a level of priority for this initiative that every single company should take note of.”

What remains unclear is what the DOJ will propose as “other strategies” to end illegal DEI, lawyers said.

A similar memo sent to DOJ employees—set to overhaul the department’s own DEI practices—could offer some insight into what the department will watch, Girouard said. He pointed to a line focused on ending diversity training and programs that reference “unconscious bias,” “cultural sensitivity,” and “inclusive leadership.”

The memo to employees also asked DOJ staff to identify federal contractors, suppliers, vendors, and grantees who have provided DEI training or DEI training materials to the department since Biden took office.

Full Force

The principles in both the executive order and memo were foreshadowed by Project 2025, a document designed to provide governance advice to the next conservative administration. DOJ should lead a “whole-of-government recommitment to nondiscrimination,” America First Legal Foundation co-founder Gene Hamilton wrote in the document.

Additionally, the agency should “reorganize and refocus” its Civil Rights Division, Hamilton wrote. In the administration’s first year, DOJ should use the “full force of federal prosecutorial resources to investigate and prosecute” a host of entities, including “corporations and any other private employers who are engaged in discrimination,” Project 2025 recommended.

The administration’s actions track with that advice.

Aside from being a potential DOJ target, businesses should also be prepared for Congress to scrutinize DEI programs, said Andrew Dockham, also a partner at Freshfields who previously worked as chief counsel for former Sen. Rob Portman (R-Ohio) as part of the Senate’s Permanent Subcommittee on Investigations.

“Congress likes to call CEOs that are the heads of household companies,” Dockham said.

Businesses are now conducting deep analyses of their policies and practices to determine what could be construed as unlawful or discriminatory, Myers said. But most will hold the line, she said.

“The companies that know how to do this and do this well, they have already had great advice about how to set up their initiatives,” she said. “These are people who deeply understand that this is part of just running a good, effective company, and it’s embedded in all of their work.”

It’s going to be a matter of risk tolerance for most businesses, Evers said.

“One thing we’ve been telling clients is that the need to retain top talent hasn’t changed,” he said. “Their commitments to their workforce have not changed, but the context in which they exist has.”