On July 29, 2025, Attorney General Pam Bondi issued a memorandum titled “Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination.”  The memorandum purports to offer “guidance” and “Best Practices” to recipients of federal funding, including “non-binding suggestions to help entities comply with federal antidiscrimination laws and avoid legal pitfalls.”  The Attorney General’s memorandum follows Executive Order 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”), which calls for “ending illegal discrimination and preferences, including DEI” in the private sector, as well as two “technical assistance” documents titled “What You Should Know About DEI-Related Discrimination at Work” and “What To Do If You Experience Discrimination Related to DEI at Work” issued by the Equal Employment Opportunity Commission (“EEOC”).  We previously discussed EO 14173 here and the EEOC technical assistance here.

The stated aim of the Attorney General’s memorandum is to “clarif[y] the application of federal antidiscrimination laws to programs or initiatives that may involve discriminatory practices,” including those labeled as “DEI” programs.  Based on DOJ’s interpretation of broad aspects of the Equal Protection Clause of the Fourteenth Amendment and Title VI, Title VII, and Title IX of the Civil Rights Act of 1964, the memorandum identifies five categories of what it describes as “unlawful practices.”  These include (1) granting preferential treatment based on protected characteristics; (2) using facially-neutral “proxies” for protected characteristics; (3) separating or restricting access to programs, activities, or resources based on protected characteristics; (4) making employment, contracting, or program participation selection decisions based on protected characteristics; and (5) facilitating training programs that may promote discrimination or hostile environments.  The memorandum lists examples of potentially discriminatory practices and “best practices” to “assist entities in avoiding legal pitfalls and upholding equal protection for all.”  Although these activities largely mirror practices previously highlighted in the EEOC’s technical assistance, the majority of the examples describe hypothetical practices at educational institutions or “federally funded” organizations.

As explained in the memorandum itself, the guidance does not impose any “mandatory requirements” on entities, including those that receive federal funding.  While the guidance does not carry the force and effect of law or change existing law, it confirms with greater clarity certain activities related to DEI that DOJ, Congress, and other regulators may be inclined to investigate as unlawful under federal antidiscrimination law – as underscored by the recent Senate Judiciary Committee hearing on DEI practices.   

Key Takeaways

  • While the memorandum is styled as non-binding guidance, it reflects DOJ’s expansive position regarding the lawfulness of several common components of corporate DEI efforts.
  • Many of the practices that DOJ has characterized as potentially unlawful have not been clearly addressed in existing case law, underscoring the need for careful legal review.  Prudent companies should continue to ensure that DEI programs align with federal courts’ interpretations of antidiscrimination law. 
  • Recipients of federal funding should consider reviewing the guidance with counsel – particularly DOJ’s suggestion to incorporate nondiscrimination clauses in “grant agreements, contracts, or partnership arrangements.”

If you have any questions concerning the material discussed in this client alert, please contact the members of our employment, government contracts, congressional investigations, or white collar investigations and defense practices.

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Photo of Kerry Burke Kerry Burke

Strategic Counsel for Capital Markets, Corporate Governance, and Securities Advisory

Kerry Shannon Burke delivers board-level guidance and transaction execution that drives business results for public and private companies. With more than 25 years of experience advising on capital markets transactions, corporate governance and…

Strategic Counsel for Capital Markets, Corporate Governance, and Securities Advisory

Kerry Shannon Burke delivers board-level guidance and transaction execution that drives business results for public and private companies. With more than 25 years of experience advising on capital markets transactions, corporate governance and public company reporting and compliance matters, Kerry is trusted by boards and the C-suite to translate legal complexity into business clarity, anticipate regulatory risk, and deliver measurable outcomes that support strategic growth and governance priorities.

Capital Markets and Financing Expertise

Kerry structures and closes high-value transactions—including IPOs, private placements, debt and equity financings and acquisition financing—for issuers ranging from emerging growth companies to Fortune 500 enterprises, as well as underwriters and institutional investors. Her approach emphasizes speed, precision and risk mitigation to protect enterprise value.

Corporate Governance Leadership

Boards and senior management rely on Kerry for actionable guidance on SEC and ESG reporting, governance strategy, cybersecurity disclosure, succession planning and compliance program design. She also assists private companies with IPO readiness, advising on board independence, internal controls and disclosure frameworks that withstand regulatory scrutiny.
Specialized Investment Advisers Act Counsel

Kerry also is an authority on the Investment Advisers Act, advising private equity, hedge and venture capital funds and financial institutions on status determinations and ongoing compliance, ensuring alignment with evolving regulatory standards.

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As a partner and co-chair of Covington’s White Collar Defense and Investigations practice group, Aaron Lewis represents businesses, boards of directors, and individuals in sensitive, high-stakes government investigations, internal investigations, and regulatory enforcement matters.

He has advised clients facing alleged criminal and civil…

As a partner and co-chair of Covington’s White Collar Defense and Investigations practice group, Aaron Lewis represents businesses, boards of directors, and individuals in sensitive, high-stakes government investigations, internal investigations, and regulatory enforcement matters.

He has advised clients facing alleged criminal and civil violations of the False Claims Act (FCA) and the Foreign Corrupt Practices Act (FCPA), as well as allegations of public corruption, export controls violations, obstruction of justice, and espionage. Aaron’s clients have included companies and independent board committees in the aerospace and defense, automotive, technology, entertainment, and retail industries and he routinely leads internal investigations of alleged misconduct or compliance failures, including several investigations involving allegations of ineffective internal controls and dysfunctional workplace cultures. He returned to Covington in 2015 after six years of service in the Department of Justice (DOJ), first as Counsel to Attorney General Eric Holder in Washington, and later as an Assistant United States Attorney in Los Angeles.

During his service in the Justice Department, Aaron advised the Attorney General on a range of enforcement issues, including intellectual property protections, national security matters and civil rights. He worked closely with senior officials at the White House, the Justice Department, and several law enforcement agencies, including the FBI and DHS. As an Assistant United States Attorney, most recently in the National Security Section, Aaron investigated and prosecuted cases involving thefts of trade secrets, export control violations, and computer network intrusions. He also prosecuted cases involving bank fraud, false statements, and mail fraud. An experienced trial and appellate lawyer, Aaron has tried several cases to verdict, and argued before the Ninth Circuit Court of Appeals.

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Ranked by Chambers USA among government contracts practitioners, Kayleigh Scalzo represents government contractors in bid protests and other high-stakes litigation matters with the government and other private parties. She has litigated bid protests in a wide variety of forums, including the Government Accountability…

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Kayleigh a co-chair of the American Bar Association Public Contract Law Section’s Bid Protest Committee. She is also a frequent speaker on bid protest issues.

Kayleigh maintains an active pro bono practice focused on immigration issues and gender rights.

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Ashley Joyner Chavous is a trusted advisor to senior leadership, public companies, and financial institutions navigating high-stakes investigations, enforcement risk, and institutional culture challenges.

Ashley’s multifaceted practice spans:

Congressional Investigations and Risk Assessments — Leading strategic responses to congressional subpoenas, hearing demands, and…

Ashley Joyner Chavous is a trusted advisor to senior leadership, public companies, and financial institutions navigating high-stakes investigations, enforcement risk, and institutional culture challenges.

Ashley’s multifaceted practice spans:

Congressional Investigations and Risk Assessments — Leading strategic responses to congressional subpoenas, hearing demands, and oversight inquiries, as well as proactive assessments of congressional and regulatory exposure across business units and jurisdictions
Compliance, Culture and Governance Reviews — Designing and managing enterprise-wide reviews of compliance systems, ethics programs, and organizational culture to identify risk trends, strengthen governance, and address issues of workplace equity and nondiscrimination, diversity and inclusion, and institutional accountability.
Enforcement Defense and Internal Investigations — Conducting sensitive, cross-border investigations and defending clients in DOJ, SEC, and multiagency enforcement matters.
Litigation and Trial Strategy — Bringing issues into litigation, preparing clients for trial and appellate phases, and managing testimony, expert engagement, and oral argument.

As a member of Covington’s White Collar Defense and Investigations Practice Group, Ashley frequently advises clients in connection with congressional letters and subpoenas, offers tailored risk mitigation strategies, and prepares senior executives for interviews, depositions, and hearing appearances. In her role with Covington’s Institutional Culture and Social Responsibility Practice Group, she leads high-stakes reviews of systemic practices and institutional change. She frequently speaks on government investigations, compliance, and governance, and has received national recognition for her work in these areas.

Before entering private practice, Ashley covered crime and the courts as a journalist, experience that informs her work at the intersection of law, policy, and public perception.

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Alex Thomson is an associate in the firm’s Washington, DC office and is a member of the White Collar Defense and Investigations and Institutional Culture and Social Responsibility Practice Groups. He has extensive experience conducting civil rights and racial equity assessments for leading…

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Alex also advises clients responding to high-profile investigations before the Department of Justice that entail significant legal and reputational risks. His practice focuses on white collar criminal defense and government and internal investigations.

Alex serves on the Board of Directors for the Joint Distribution Committee (JDC), the leading global Jewish humanitarian organization. Prior to joining Covington, Alex served as a law clerk to the U.S. House Committee on the Judiciary and was a fundraiser for the Jewish Federation of Boston. He also has served on national finance committees for two presidential campaigns.

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Stephanie King is an associate in the firm’s Washington, DC office. She is a member of the Congressional Investigations and Election and Political Law Practice Groups where she advises clients facing or preparing for congressional inquiries which present legal and public relations risks. …

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Prior to law school, Stephanie was the Associate Director of Content Strategy for a digital communications firm, where she oversaw the strategic drafting and production of campaign advertisements and online messaging.