Labor & Employment Law Daily Wrap Up, DOJ NEWS—In another memorandum, AG Bondi puts ‘disparate impact’ theories in the cross-hairs, (Feb 7, 2025)

By Brandi O. Brown, J.D.

The memorandum instructs department employees to “thoroughly evaluate consent decrees, settlement agreements, litigation positions (including those set forth in amicus briefs), grants or similar funding mechanisms, procurements, internal policies and guidance, and contracting arrangements.”

In a memorandum with the given subject of “ELIMINATING INTERNAL DISCRIMINATORY PRACTICES,” one of over a dozen memos signed off on by Attorney General Pam Bondi so far this week, the AG provides instructions for department employees intended to further the termination of “discriminatory programs and policies relating to DEI and DEIA.”

Disparate impact theories. In this memo, Bondi takes aim at not only “consent decrees, settlement agreements, litigation positions (including those set forth in amicus briefs), grants or similar funding mechanisms, procurements, internal policies and guidance, and contracting arrangements[,]” which she instructs should be “thoroughly” evaluated, but also guidance relating to “disparate impact” theories. Specifically, the AG instructs that “[u]pdated guidance should narrow the use of ‘disparate impact’ theories that effectively require use of race- or sex-based preferences. The guidance shall also emphasize that statistical disparities alone do not automatically constitute unlawful discrimination.”

No more “cultural sensitivity” or “inclusive” language. In addition to a far-ranging report of information she requires from “each of the Department component,” she also states that in “preparing these reports, each component shall pay particular attention to ending references to DEI or DEIA in (1) training and programs, including references to ‘unconscious bias,’ ‘cultural sensitivity,’ ‘inclusive leadership,’ and any emphasis on race-or sex-based criteria rather than merit; (2) policies and guidelines, including hiring, promotion, or performance evaluation policies; and (3) vendor contracts and budget materials.”

The Department components have been given until March 15, 2025, to provide the reports.

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