Former EEOC and OFCCP Officials Respond to DOJ  Memo on “Unlawful Discrimination”

On November 18, 2025, EEO Leaders, an organization comprised of Democratic-aligned former EEOC and OFCCP officials, published a response (“EEO Leaders Response”) to the Department of Justice’s (“DOJ”) July 2025 Memorandum titled “Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination.”

Lawful DEI Practices from EEO Leaders

The EEO Leaders' response rebuts many inferences from the July DOJ memo that suggested a broad array of DEI practices are unlawful. The response highlighted the lawfulness of the following key practices:

• Recruitment
  • Expanded outreach strategies designed to achieve a broad applicant pool are clearly lawful and advance nondiscrimination goals.
• Hiring
  • Using cultural competency as a hiring criterion is entirely consistent with equal employment opportunity.
  • The Supreme Court has explicitly approved of using individualized descriptions of personal experiences for merit-based evaluation (citing the majority opinion in SFFA v Harvard at page 230).
  • Employers can and should actively evaluate applicant pools, interview panels and candidate slates, if applicable, as well as other aspects of the hiring process, to ensure they reflect a commitment to equal opportunity for all.
• Inclusive and Welcoming Workplaces
  • Standard employer approaches to employee resource groups make them inclusive of all employees and aligned with legal requirements of opportunity for all.
  • Courts – and the EEOC – have clearly approved of well-designed training programs to support non-discriminatory and inclusive workplaces that address racial, gender-based, and other forms of bias.
• Rights of Transgender Employees
  • Transgender employees’ right to use facilities consistent with their gender identity has been upheld by courts and the EEOC.
• Protecting the Right to Raise Discrimination Concerns Free from Retaliation
  • It is illegal to retaliate against employees for any protected activities raising concerns about discrimination – whether those concerns align with the government’s viewpoint on DEI or oppose it.

The above is from EEO Leaders Response, page 2.

Continue with Proactive Efforts

EEO Leaders’ response cautions employers against abandoning proactive efforts, such as running data analyses of employment decisions and practices, to ensure equal employment opportunity:

“Decades of experience have shown how proactive work to expand opportunity and prevent discrimination supports sound risk management.  This work includes, for example, reviewing internal data on hiring practices, evaluating pay equity, and assessing employee engagement – as well as promoting inclusive culture, training on respectful workplaces, and strengthening trust and feedback processes through employee resource groups.  The work also encompasses key policy innovations such as expanding recruitment sources and updating hiring and promotion practices to ensure they promote equal opportunity.  Since many of these practices are designed to result in more equitable workplaces and reduce the likelihood of discrimination, employers may face additional risk if they dismantle those programs.”

The above is from EEO Leaders Response, page 4. 

What This Means for Your Organization

Adapted from the EEO Leaders’ guidance, the takeaways for organizations include:

1. Engaging in broad outreach and recruitment strategies to promote equal opportunity, which can advance an employer’s talent objectives and business success.
2. Engaging in merit-based hiring based on the full range of skills and competencies that are relevant to the workplace and the job.
3. Evaluating applicant pools and other aspects of the hiring process, to ensure they reflect a commitment to equal opportunity for all.
4. Supporting employee resource groups that are open to participation by all employees.
5. Providing training on non-discrimination that addresses racial, gender-based, and other forms of bias, through promoting respectful conduct and inclusive culture.
6. Allowing employees to use facilities consistent with their gender identity.
7. Establishing strong anti-retaliation protections that ensure employees can voice concerns and identify potential discrimination on any basis protected under the law. 

Additional Publications from EEO Leaders

EEO Leaders published two additional documents:

• “The Time is Now – Fight Back / Move Forward”
• An executive summary