OMB Leans Into DOJ Memorandum on DEI

The Office of Management and Budget (OMB), in a very brief memorandum issued Friday, Sept. 12, is pretty much saying, “Did you hear what the Department of Justice (DOJ) said a few weeks ago? Well, we agree with that. Now it’s really, really official.”

OMB issued M-25-33, Eliminating Funding of Unlawful Discrimination, in which OMB Director Russell Vought reiterates that in accordance with Donald Trump’s direction, “the federal government will no longer fund discriminatory and divisive programs, including diversity, equity and inclusion (DEI) programs that violate federal antidiscrimination laws.”

The memo refers to and attaches DOJ’s July 29 memorandum for all federal agencies and recipients of federal funding entitled “Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination,” which urged agencies and recipients to follow federal antidiscrimination law, noting that DOJ would consider programs supporting DEI as discriminatory. Vought instructs federal agencies to follow the DOJ guidance when managing federal programs and funded institutions.

In case you missed it the first time, key points that DOJ addressed in the memorandum include:

• Prohibition on protected characteristics as criteria: Using race, sex or other protected characteristics for employment, program participation, resource allocation, or other similar activities, opportunities or benefits, is unlawful, except in rare cases where such discrimination satisfies the relevant level of judicial scrutiny.
• Importance of sex-separated intimate spaces and athletic competitions: Compelling employees to share intimate spaces with the opposite sex or allowing men to compete in women’s athletic competitions would typically be unlawful.
• Unlawful proxy discrimination: Facially neutral criteria (e.g., “cultural competence,” “lived experience,” geographic targeting) that function as proxies for protected characteristics violate federal law if designed or applied with the intention of advantaging or disadvantaging individuals based on protected characteristics.
• Scrutiny of third-party funding: Recipients of federal funds should ensure federal funds do not support third-party programs that discriminate.
• Protection against retaliation: Individuals who object to or refuse to participate in discriminatory programs, trainings or policies are protected from adverse actions like termination or exclusion based on that individual’s opposition to those practices.

Certain OMB memorandums affecting grant programs this year have been remarkably short and sweet (see M-25-14), except for, well, the “sweet” part.

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