It’s been another busy week in the battle over DE&I, with leaders suing the Trump administration over the president’s executive orders, and the new attorney general directing the Department of Justice (DOJ) to investigate private companies’ DE&I activities. Despite the threats, one legal expert told HR Brew that private-sector companies should resist the government’s bullying tactics.
On Feb. 3, the American Association of University Professors (AAUP), the city of Baltimore, the Restaurant Opportunities Center United (ROCU), and the National Association of Diversity Officers in Higher Education (NADOHE) sued the Trump administration over the DE&I-related executive orders issued last month, according to CBS News.
The suit, filed in Maryland district court, claimed the anti-DE&I executive orders violate the first amendment, calling those prohibiting DE&I activities “unconstitutionally vague.” The administration has not defined which DE&I initiatives are considered illegal. The suit further alleges that the executive orders open the door to “discriminatory enforcement” by government officials, and violates the Due Process Clause of the Fifth Amendment.
“In his crusade to erase diversity, equity, inclusion, and accessibility from our country, President Trump cannot usurp Congress’s exclusive power of the purse, nor can he silence those who disagree with him by threatening them with the loss of federal funds and other enforcement actions.” the suit says.
Taking back the mic on Feb. 5, the newly sworn-in Attorney General Pam Bondi issued a memo to DOJ employees outlining her priorities, including targeting DE&I, Slate reported. She directed the DOJ’s Civil Rights division to submit by Mar. 6 recommendations to “encourage the private sector to end illegal discrimination and preferences, including policies relating to DEI and DEIA.” Under her directive, private companies could be subjected to “criminal investigation” and civil penalties.
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The memo also asked DOJ employees to suggest strategies for targeting private-sector companies, and to highlight those with the “most egregious and discriminatory DEI and DEIA practitioners."
Bondi believes the Supreme Court’s 2023 decision on affirmative action extends to all diversity initiatives, including recruitment, retention, and other employment activities, according to Slate. However, the Supreme Court decision was limited to race-based university admissions and does not apply to how companies conduct business, HR Brew previously reported.
“This as a vicious bullying tactic aimed at making DE&I advocates and pro-DE&I organizations cower in fear,” David Glasgow, a lawyer and executive director at the Meltzer Center for Diversity, Inclusion, and Belonging at New York University School of Law, told HR Brew via email.
Glasgow added that Bondi’s directive is “a shocking and lawless escalation of the bullying approach that this administration has already taken on DE&I issues,” noting that companies would have grounds for a constitutional challenge, should these threats come to fruition.
“It will be up to each company to choose how it responds, but I would urge leaders to continue their lawful DE&I activities and not give in to bullies.”
The DOJ did not respond to HR Brew’s request for comment prior to publication.