Criminalizing Corporate DEI Skews the DOJ’s Founding Mission

With the barrage of questionable moves from the Trump administration, one of the most dangerous is slipping under the radar: the Department of Justice’s attempt to brand private-sector diversity, equity, and inclusion efforts as illegal acts.

DEI isn’t a crime. Workplace diversity and inclusion initiatives rest on decades of federal statutes and case law.

Attorney General Pam Bondi’s directive issued this month is also more than an attack on DEI—it’s an unprecedented expansion of executive power. It twists the DOJ, an institution created to protect civil rights, into a weapon used to dismantle them.

Reversing Precedent

The Justice Department was founded in 1870 to enforce the KKK Acts, protecting Black Americans from racial terror designed to suppress their political and economic rights. Nearly a century later, the Civil Rights Act of 1957 established the DOJ’s Civil Rights Division to safeguard Black voting rights and fight systemic discrimination.

Now, the DOJ is being used to intimidate private companies that try to foster inclusion. Progress toward equality has never come easily, but efforts to make workplaces, products, schools, and government more inclusive are part of this trajectory, ensuring that race, religion, gender, or background aren’t barriers to opportunity.

Decades of legal precedent support corporate diversity and inclusion efforts. The US Supreme Court has repeatedly affirmed that private employers can implement voluntary affirmative action initiatives. In Steelworkers v. Weber and Johnson v. Transportation Agency, the justices upheld private-sector diversity efforts, finding they didn’t violate Title VII of the Civil Rights Act of 1964.

Beyond the courts, civil rights laws and federal policies historically have encouraged workplace diversity. Title VII protects against workplace discrimination and allows targeted outreach efforts to expand applicant pools. For nearly 60 years, Executive Order 11246 required federal contractors to take affirmative action to ensure equal employment opportunities—until the Trump administration rescinded it last month.

The Equal Employment Opportunity Commission has long recognized that inclusive hiring and promotion efforts help mitigate discrimination risks. After the Supreme Court’s Students for Fair Admissions v. Harvard decision in 2023, attorneys general from more than 20 states issued joint letters assuring companies that DEI efforts remain lawful and protected.

Critique, Don’t Criminalize

Some DEI initiatives can be flawed when programs are poorly designed or performative. That doesn’t justify criminalizing corporate inclusion efforts. Threats to prosecute businesses for these initiatives aren’t just legally dubious—they’re an extraordinary abuse of power.

Bondi’s memo didn’t specify which criminal statutes could be used to prosecute DEI initiatives. One likely option is 18 USC Section 241, a law enacted in 1870 to combat White supremacist violence, as the basis for criminal charges against DEI programs. This law makes it a felony for two or more people to conspire to violate constitutional or federally protected rights.

For more than a century, this law has been reserved for prosecuting hate crimes, voter suppression, and police misconduct. No court has ever applied it to corporate human resources policies. Stretching Section 241 to claim that DEI initiatives constitute a criminal conspiracy would be an unprecedented distortion of federal law and a perversion of the DOJ’s role in protecting equal opportunity.

Companies such as Costco recognize that inclusion efforts aren’t just about fairness—they drive innovation and financial success. Research consistently backs this up. Far from being criminal, these programs can help businesses comply with civil rights laws and reduce the risk of discrimination lawsuits.

Creating New Law

The Justice Department’s role is to enforce laws, not unilaterally create new ones. Yet the anti-DEI directive seeks to criminalize voluntary corporate inclusion efforts without congressional authorization or legal precedent. Congress—not the executive branch—can enact federal crimes. Directing the DOJ to investigate private businesses for implementing inclusion programs effectively amounts to creating new criminal law through executive fiat.

The memo violates long-standing, post-Watergate principles of DOJ prosecutorial independence. Aligning with Trump’s attacks on DEI, it bypasses the constitutional separation of powers, raising serious concerns about executive overreach.

Legal scholars and civil rights advocates warn that Trump’s executive orders and Bondi’s interpretation of federal law are legally indefensible and unlikely to withstand judicial scrutiny. Lawsuits are already challenging Trump’s executive orders on DEI, arguing they exceed constitutional limits on executive authority.

A Constitutional Battle

Weaponizing the DOJ against corporate inclusion efforts sets a dangerous precedent. What would stop the agency from criminally investigating state and local officials who enforce pay equity laws or equal education protections if voluntary programs can be targeted today?

This isn’t just about DEI—it’s about whether the executive branch can use the DOJ’s vast powers to pressure leaders in the private and public sectors to comply with a president’s political agenda.

Discouraging these programs harms everyone—not just minority communities, women, LGBTQ+ people, and disabled people, but also White people, particularly those from poor and working-class backgrounds who benefit from fair hiring practices, workforce development programs, and educational opportunities.

This rollback will weaken workplaces, shrink economic mobility, and deepen systemic barriers that trap people in cycles of poverty and exclusion.

Every US citizen, regardless of race, religion, gender, or political affiliation, should be alarmed. When the government turns its power against those fighting for fairness, the threat extends beyond corporate policies to democratic governance itself.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Omar H. Noureldin is a democracy fellow at the University of Chicago Center for Effective Government and former senior counsel with the DOJ’s civil rights division.

Write for Us: Author Guidelines