Pam Bondi, the Trump administration’s newly appointed Attorney General, has issued a memo to the U.S. Department of Justice (DOJ) that instructs the Civil Rights Division and the Office of Legal Policy to submit a report with recommendations “to encourage the private sector to end illegal discrimination and preferences, including policies relating to DEI and DEIA,” according to a news report from Slate.com. The memo also asked the two divisions of the DOJ to identify “[business] sectors of concern” and the “most egregious and discriminatory DEI and DEIA practitioners in each sector of concern.” The Slate report also says that Bondi’s memo suggests that some private companies might face criminal penalties for their DEI practices.
Right now, there are very few details regarding what the DOJ will focus on or how the Trump Administration initiative will be implemented. However, observers have already speculated that much of what is mentioned in the Bondi memo may be illegal. Corporate board members should endeavor to find out as much as possible about the DOJ’s anti-DEI efforts before making any major changes to corporate operations and programs. That will likely take some time.
Wait, Then Act
In its first two weeks, the Trump Administration has tried to implement many sweeping changes, and some of those efforts have been halted by the courts or have been walked back after pushback from the public and legislators. Board members should wait to see how this DOJ initiative is dealt with in the courts before taking action. Now that it appears the federal government is aligning with anti-DEI forces, corporate boards may need to make this DOJ memo an agenda item during at least one meeting this year to determine what adjustments or strategies their company might need to implement to continue DEI programs or modify them in ways that will ensure fairness and equal opportunity across the board.
It is important that the board and management have discussions and agree on how the programs are structured and how they are to be implemented. It is also important to remember that being inclusive is not a crime—at least not yet. However, as guardians of the company, directors must anticipate how anti-DEI forces might attack their programs and come up with ways to mitigate potential problems. Some suggestions:
Create a board subcommittee on DEI. With all the attention paid to publicly traded companies that decided to limit or end their DEI programs and initiatives in 2024, there is even greater pressure for companies to abandon DEI now that the U.S. Justice Department might get involved. Appointing a few directors as a subcommittee to study everything that is transpiring regarding the anti-DEI movement and the companies that are fighting back against it may yield important insights and strategies that can be helpful to corporate boards that want to maintain inclusiveness as a core value. After some investigation and study, the subcommittee could present several recommendations to the board and management that could sustain the spirit and function of DEI programs going forward.
Seek allies that support DEI. Boards don’t have to go it alone. Consult with directors at other companies to determine how they are dealing with anti-DEI issues. Collaborate and share ideas with shareholders. The more information and insight you can gather, the better prepared your company will be if targeted. Consult with legal scholars, advisory firms and others to determine which strategies might work best for your company. Devote resources for legal defense as well.
Prepare for court. Right now, anti-DEI forces are suing to end DEI programs. At some point, companies that want to continue these programs will need to fight for that right in court. In most cases, discrimination must be proven. However, in these DEI lawsuits, it is questionable if any real person has been discriminated against—and if they have, that point should have to be proven in the courts. Most of the companies that have backed away from their DEI programs have not made detractors prove that they have discriminated against anyone. Since the DOJ is involved now, this matter will likely end up in the courts. Companies that believe in and benefit from diversity should prepare to go to court and fight for the right to run their company in the best way for their stakeholders.
