Melissa Raphan

On January 14, 2026, the United States Department of Justice’s (“DOJ”) Civil Rights Division filed a federal suit seeking to strike down the State of Minnesota’s affirmative-action program in a challenge that could have sweeping consequences for public and private employers throughout the United States. DOJ’s action, brought under Title VII of the Civil Rights Act of 1964 (“Title VII”), signals a continuation and escalation of the second Trump administration’s anti-DEI agenda. What is DOJ alleging? DOJ alleges the State of Minnesota (“Minnesota”) “engages in a pattern or practice of resistance to the full enjoyment of rights secured by Title VII” in implementing its statutorily mandated affirmative-action program for hiring state workers. Under Minnesota law, Minnesota is required to implement an affirmative-action program for hiring across state agencies with the stated goal of “eliminat[ing] the effects of past and present discrimination.”1 Specifically, Minnesota’s affirmative-action program is designed to “eliminate underutilization of qualified protected group members within the state civil service . . .”2 “Qualified Protected Groups” include women, people with disabilities, and members of the following minority groups: “Black, Hispanic, Asian or Pacific Islander, and American Indian or Alaskan native.”3 To do this, state agencies must look to labor force statistics to identify underutilization of protected groups.4 If an agency identifies underutilization for any role, it must establish hiring goals from those protected groups and identify a timetable for achieving those goals.5 Failure to achieve the goals requires the agency to justify the non-protected group hires.6 DOJ claims two violations under sections 703(a)(1) and (a)(2) of Title VII: that Minnesota (1) fails or refuses to hire or discharge an employee based on race, color, religion, sex, or national origin; and (2) limits, segregates, or classifies employees in a way that disadvantages them based on race, color, religion, sex, or national origin.7 DOJ characterized Minnesota’s staffing decisions as a “zero-sum game” such that giving preference to certain candidates based on protected class status disadvantages other candidates based on those same characteristics. DOJ also alleges Minnesota engages in a “pattern or practice” of discrimination by requiring agencies to justify hires from outside of the protected groups hires when statutorily mandated goals are not met. DOJ further alleges Minnesota’s identification and classification of certain underutilized protected groups (e.g., persons of color and women) adversely impacts those who fall outside of those underutilized protected groups. DOJ is seeking both declaratory and injunctive relief against Minnesota. What is the law on affirmative-action programs today? For nearly half a century, the Supreme Court has sanctioned certain affirmative-action programs in employment. In United Steelworkers of America v. Weber,8 the Supreme Court rejected arguments that Title VII “prohibits all race-conscious affirmative-action plans,”9 holding “we cannot agree . . . that Congress intended to prohibit the private sector from taking effective steps to accomplish the goals that Congress designed Title VII to achieve.”10 The Court reasoned that “[i]t would be ironic indeed if a law triggered by a Nation’s concern over centuries of racial injustice . . . constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy.”11 Eight years later, the Supreme Court extended this logic to public employers. In Johnson v. Transportation Agency, Santa Clara County, California,12 the Court considered a challenge to an affirmative-action plan that permitted a public agency to consider a qualified applicant’s sex for traditionally segregated job classifications in which women were significantly underrepresented.13 The Court held that the County’s affirmative-action plan was in line with the requirements of Title VII, enshrining public employers’ rights to implement affirmative-action plans to remedy traditional underrepresentation. In its Complaint, DOJ cites the Supreme Court’s recent decision in Students for Fair Admissions v. President & Fellows of Harvard College (“SFFA”),14 in which the Court determined race-conscious admissions in higher education violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act. While not a decision under Title VII, SFFA is often cited by the government and others as a recent indicator of the Supreme Court’s hostility to consideration of race in similar programs, regardless of remedial effect or intent. In the DOJ’s press release accompanying its Complaint, DOJ asserted: “While the U.S. Supreme Court previously sanctioned the consideration of race and sex in hiring for ‘traditionally segregated job categories,’ the United States argues such outdated precedents are inconsistent with both the text of Title VII and subsequent Supreme Court caselaw.” In other words, DOJ recognizes that its Complaint is contrary to long-standing Supreme Court precedent, but it is seeking to overturn that precedent in its suit.  What does it mean that the Attorney General certified the case as one of “general public importance”? Title VII permits the Attorney General of the United States to request appointment of a three-judge panel to decide disputes certified by the Attorney General as being of “general public importance.”15 While the statutory requirement of a three-judge panel provides additional judicial involvement at the trial stage, perhaps the most significant implication of the suit’s designation is that any appeal from final judgment may be made directly to the Supreme Court. This, coupled with the statutory mandate that Title VII actions “be in every way expedited,” suggests this challenge could reach—and be decided by—the Supreme Court much faster than most suits. In the past year, the second Trump administration has issued several executive orders addressing what it refers to as illegal DEI, including Executive Order 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”), which directed the Attorney General to provide the White House with recommendations “for enforcing Federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.” In that and other guidance and federal government directives, the exact meaning of “illegal DEI” has not been clarified, leaving employers nationwide to navigate a shifting and obscure federal landscape. What would a DOJ verdict mean for my organization? If DOJ’s challenge is successful, it likely means the end of affirmative-action programs nationwide. DOJ seeks a declaratory judgment that Minnesota’s affirmative-action program, which is consistent with or similar to affirmative-action plans implemented by public and private employers across the country, violates Title VII. To reach this result, either the District of Minnesota’s three-judge panel or, more likely, the Supreme Court would need to overturn its nearly 50-year-old precedent in United Steelworkers to interpret Title VII to prohibit remedial affirmative-action programs. A decision of this magnitude could require employers throughout the country to move quickly to dissemble affirmative-action programs and to change hiring policies and practices to comply with any new Supreme Court directives. Such a ruling could open state laws that require agencies, contractors, or others to develop and implement affirmative-action programs, to arguments that they are preempted by federal law. Moreover, employers could find themselves subject to increased litigation from individuals challenging current programs by filing Equal Employment Opportunity Commission discrimination charges relying on any decision striking down Minnesota’s program. Federal fund recipients would be particularly impacted by a ruling in favor of DOJ. Federal fund recipients (including contractors, subcontractors, and grant recipients) are frequently required to agree to or certify to their compliance with federal civil rights laws. A decision finding affirmative-action programs in employment violate Title VII would upend nearly half a century of accepted employment practices, and federal funding could be at stake. What would a defense verdict mean for my organization? If Minnesota successfully defends against DOJ’s challenge through an appeal to the Supreme Court, the immediate result could be an endorsement of the permissibility of affirmative-action programs that otherwise complied with existing Supreme Court precedent. While much depends on the specifics of any ruling, such a decision could also undermine the theories underpinning DOJ’s positions on DEI and related practices. Absent a conclusive endorsement of established caselaw supporting affirmative-action programs, however, public and private employers may still find themselves having to navigate conflicting obligations and interpretations of law between federal and state authorities. How should my organization prepare? Because of the Attorney General’s certification and the expedited nature of Title VII challenges, it is unlikely that DOJ’s challenge will languish in court for years on end. While the suit is in its nascent stages and it seems unlikely that a three-judge panel will take it upon itself to overturn longstanding Supreme Court precedent, public and private employers alike may want to begin contingency planning for the possibility that the Supreme Court will declare Minnesota’s affirmative-action program unlawful. If that happens, it is likely that other affirmative-action programs will be challenged in the courts, and an aggressive federal government could seek to leverage a favorable ruling to expand anti-DEI enforcement actions. 1 Minn. Stat. 43A.19, subd. 1(a). 2 Minn. R. 3905.0100. 3 Minn. Stat. 43A.02, subd. 33. 4 Minn. R. 3905.0600. 5 Minn. R. 3906.0600. 6 Minn. Stat. 43A.191, subd. 3(c). 7 42 U.S.C. § 2000e-2(a)(1), (2). 8 443 U.S. 193, 254-55 (1979). 9 Id. at 201. 10Id. at 204.  11 Id. 12 480 U.S. 616, 632-42 (1987). 13 Id. at 620-21. 14 600 U.S. 181 (2023). 15 42 U.S.C. § 2000e-6(b).

On February 5, 2025, U.S. Attorney General Pam Bondi issued a series of fourteen policy memoranda directed to all employees of the U.S. Department of Justice (“DOJ”). Two are particularly likely to impact companies and higher education institutions: “Ending Illegal DEI and DEIA Discrimination and Preferences” and “Total Elimination of Cartels and Transnational Criminal Organizations.” In this eUpdate, we summarize the key points of each and offer analysis and recommendations in light of the new directives.[1] 1. “Ending Illegal DEI and DEIA Discrimination and Preferences” Bondi issued a two-page memorandum directing DOJ’s Civil Rights Division to “investigate, eliminate, and penalize” private companies and universities that have “illegal” diversity, equity, and inclusion programs. Bondi’s main authority for this directive: the recent United States Supreme Court case, Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 206 (2023), and President Trump’s recently issued Executive Order (“EO”) 14173. The memorandum cites the Students for Fair Admission decision as providing that “[e]ducational agencies, colleges, and universities that receive federal funds may not ‘treat some students worse than others in part because of race.’” Further, it states that EO 14173 makes “clear that policies relating to ‘diversity, equity, and inclusion’ (“DEI”) and ‘diversity, equity, inclusion, and accessibility’ (“DEIA”) 'violate the text and spirit of our longstanding Federal civil-rights laws’ and ‘undermine our national unity.'” Bondi’s memorandum directs DOJ’s Civil Rights Division and the Office of Legal Policy to meet a March 2025 deadline to submit to the Associate Attorney General a joint report with recommendations for “enforcing civil rights laws” and otherwise encouraging the private sector to end “illegal discrimination and preferences,” including DEI policies. Among other things, the report should include proposals for “criminal” investigations and “up to nine potential civil compliance investigations of entities that meet the criteria outlined in” EO 14173. According to EO 14173, those entities include publicly traded corporations, large non-profit corporations or associations, foundations with assets of $500 million or more, State and local bar and medical associations, and institutions of higher education with endowments over $1 billion.[2] The joint report should also address what Bondi’s memorandum calls those that have engaged in “[t]he most egregious and discriminatory” DEI practices “in each sector of concern” within DOJ’s jurisdiction. In a footnote, the memorandum contains a narrow carve-out, stating that while the memorandum is meant “to encompass programs, initiatives, or policies that discriminate, exclude, or divide individuals based on race or sex,” it “does not prohibit educational, cultural, or historical observances-such as Black History Month, International Holocaust Remembrance Day, or similar events-that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.” Closing with a brief paragraph under the header “Guidance to Institutions Receiving Federal Funds,” Bondi states that, consistent with EO 14173, DOJ “will work with the Department of Education to issue directions, and the Civil Rights Division will pursue actions, regarding the measures and practices required to comply with Students for Fair Admissions.” Analysis and Recommendations The DEI-focused memorandum raises several issues. First, DOJ is following in lockstep with the President’s Executive Orders, and this memorandum provides marching orders to DOJ attorneys to enforce the letter and perhaps spirit of the President’s Executive Orders.[3] Those orders are ambiguous in key areas and appear to rely on novel and broad interpretations of the law, and therefore DOJ’s roll-out of investigations and priorities may be uneven—even within DOJ and across the many local United States Attorney’s Offices. In particular, the directive about potential “criminal” investigations will create significant uncertainty—and risk—across various industry sectors and in higher education.  Second, the memorandum leaves unaddressed which existing criminal statutes would apply to DEI policies and practices by private actors that do not otherwise constitute illegal discrimination under existing law. Dorsey anticipates, however, that DOJ could rely on several federal statutes to investigate and prosecute fraud against the government, including 18 U.S.C. § 287 (false claims), 18 U.S.C. § 371 (conspiracy to defraud the government), 18 U.S.C. § 1001 (false statements made to the government), and Title 18 U.S.C. § 1031 (major fraud on government). Nonetheless, criminal investigations and prosecutions would constitute a major unprecedented shift for DOJ, as these criminal statutes have not been used much if at all to investigate and prosecute allegedly discriminatory behavior among private actors.[4] For civil cases, however, DOJ has authority in Title VI of the Civil Rights Act which prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal funds. DOJ also has authority to bring cases under the False Claims Act against any government contractor or those who make claims to the government for a benefit or payment.  Pursuant to Bondi’s new memorandum, DOJ may pursue claims against those it may contend have submitted false certifications of compliance with the government’s requirements as set forth in EO 14173. Third, DOJ’s emphasis on higher education institutions receiving federal funds indicates that these entities will be a heightened priority for this administration. We also anticipate potential increased whistleblower activity in these areas. Notably, however, the President’s DEI-related executive orders are already undergoing challenges in the courts. Higher education groups, including college professors and university diversity officers, along with the City of Baltimore, filed suit in federal court in Maryland on Monday, February 3, 2025, seeking an order declaring EO 14173 and a related Executive Order, EO 14151, unlawful and unconstitutional and seeking to permanently enjoin their enforcement.[5] For these reasons, we recommend that companies and higher education institutions: Conduct an independent and comprehensive privileged internal DEI review to evaluate policies, practices, programs, initiatives, and communications and to assess reputational, business, and legal risk. The focus of the review should involve assessing whether your organization may be acting contrary to Executive Orders, including EO 14173, as well as DOJ’s directives. Pay particular attention to government contracts. Because the Executive Orders and Bondi’s memorandum do not change or replace existing anti-discrimination statutes, the review should assess whether and to the extent your organization may continue to engage in practices that are consistent with anti-discrimination and other laws that have long been on the books, despite the recent directives from the Trump administration.[6] The scope of the review should include external and internal communications as well as all training. Be prepared for the possibility of subpoenas, law enforcement involvement, or further scrutiny from agencies, including DOJ’s Civil Rights Division and Civil Division - Fraud Section. Consider that what was formerly a garden-variety “discrimination” claim response playbook must evolve to address the changing landscape that now includes the possibility of False Claims Act liability and criminal enforcement. Consider additional training and adjusting mindsets to approach alleged discrimination consistent with administration directives when addressing DEI policies and practices and other certifications related to federal funding. Dorsey continues to closely watch the progress of legal challenges to, as well as the development of DOJ efforts relying upon, EO 14173 and other Executives Orders. Dorsey also continues to closely monitor the Trump Administration’s position on DEI. We recommend companies and higher education institutions also watch the progress of the lawsuits challenging EO 14173 and the development of DOJ efforts relying upon it.[7] These legal challenges will impact the risks that DOJ will pursue investigations and enforcement actions against companies and higher education institutions for DEI-related policies and practices. 2. “Total Elimination of Cartels and Transnational Criminal Organizations” Also on February 5, Bondi issued a separate memorandum entitled “Total Elimination of Cartels and Transnational Criminal Organizations” that directs DOJ to marshal resources throughout the country toward the goal of eliminating cartels and transnational criminal organizations (“TCOs”). Importantly, the memorandum does not precisely define cartels or TCOs.[8]  But for cases involving what DOJ considers a cartel or TCO target, the memorandum establishes various factors for prosecutors to consider when making decisions regarding charging, arrests, and extraditions, to include whether the target is a manager or leader in the organization, whether the conduct resulted in the death or injury of a U.S. citizen, and whether the target engaged in international terrorism. The memorandum provides that the Foreign Corrupt Practices Act (“FCPA”) Unit will prioritize cases such as bribery of foreign officials to facilitate human smuggling and the trafficking of narcotics and firearms and other cases involving cartels and TCOs and will “shift focus away” from other FCPA and fraud investigations.  Importantly, this means that the FCPA Unit has been directed to focus away from the types of foreign corporate corruption cases it historically has brought, in the absence of a connection to cartels and TCOs.  The potential implications of this policy for ongoing FCPA investigations remain unclear.  To emphasize DOJ’s new priorities, Bondi is removing what she calls “bureaucratic impediments to aggressive prosecution” of these cases. Namely, her memorandum suspends various authorization requirements that are ordinarily in place for the investigation and prosecution of FCPA and related cases that DOJ has long established and incorporated into its Justice Manual.  In particular, for the newly- prioritized cartel and TCO-related cases, Bondi suspended a long-standing DOJ policy that required trial attorneys from the DOJ's Fraud Section to handle FCPA and other corruption cases. From now on, “U.S. attorney's offices shall provide the Foreign Corrupt Practices Act Unit with 24 hours' advance notice of the intention to seek charges and make available to the unit upon request any existing memoranda relating to the contemplated charges.” Existing policies for handling classified information will remain in place. The DOJ’s Money Laundering and Asset Recovery Section is directed to prioritize cases involving cartels and TCOs. DOJ is also disbanding its Kleptocracy Team and related Kleptocracy Asset Recovery Initiative and Task Force KleptoCapture and re-directing those efforts in investigation, prosecution, and asset forfeiture towards “the total elimination of Cartels and TCOs.” The Kleptocracy Asset Recovery Initiative had been aimed at obtaining the forfeiture of the proceeds of foreign official corruption and, where appropriate, using those recovered assets to benefit those harmed by acts of foreign corruption and abuse of office. Further, DOJ is elevating existing Joint Task Force initiatives against the MS-13 drug cartel and against human trafficking and focusing their resources on cartels and TCOs.[9]  Bondi is also pursuing various legislative changes to target drugs manufactured and distributed by cartels and TCOs, including permanently placing fentanyl-related substances on the Schedule I of the Controlled Substances Act and expanding federal law to cover devices and materials used to make counterfeit pills. Analysis and Recommendations Looking ahead, global companies and higher education institutions with international business or activities—and particularly those operating in industries, such as healthcare and financial services, and in regions, such as Latin America and China, that may be a focus of enforcement efforts by the Trump Administration—should take this opportunity to assess the effectiveness of their compliance programs in light of their risk profiles and changing enforcement priorities.  This may include undertaking a risk assessment to understand the company’s corruption and money laundering risk in regions that are at higher risk for enforcement under this new policy, including any potential risks relating to cartels and TCOs, among others; the risk profiles of any customers/merchants, agents, vendors, and other third parties acting on the company’s behalf; and whether the existing compliance program is reasonably designed to detect and prevent misconduct in light of those risks. Critically, however, the memorandum does not alter the bases for liability under the FCPA and anti-money laundering statutes or U.S. government’s ability to enforce those statutes against U.S. and foreign companies. Moreover, as mentioned, the memorandum does not carefully define “cartels” and “TCOs.” Companies and higher education institutions would be well-served to continue implementing appropriately resourced anti-corruption and anti-money laundering compliance programs tailored to their risks, bearing in mind several key considerations. First, U.S. authorities can—and have—initiated anti-corruption and anti-money laundering investigations years after the underlying conduct, considering applicable statutes of limitations. Companies and higher education institutions who may relax their anti-corruption and anti-money laundering compliance programs under this new policy may find themselves in the disadvantageous position of needing to quickly ramp up their compliance programs, with the potential for investigation of any anti-corruption or anti-money laundering misconduct that may have occurred in the interim, should any future administrations take a more aggressive approach to enforcement. Second, the memorandum does not alter any enforcement policies of the U.S. Securities and Exchange Commission (SEC). U.S. and foreign companies that trade shares on U.S. exchanges remain subject to SEC jurisdiction, including with respect to the accounting provisions of the FCPA.  Issuers must maintain accurate books and records and implement a system of internal controls sufficient to, among other things, provide reasonable assurances that transactions are executed, and assets are accessed and accounted for, in accordance with management’s authorization. Third, global companies and higher education institutions with international business or activities will remain subject to foreign anti-corruption and anti-money laundering regimes and the enforcement policies of foreign authorities. Many of these authorities, including the French Parquet national financier and the U.K. Serious Fraud Office, have been increasingly active in recent years and may redouble their efforts in light of any perceived decrease in U.S. enforcement. Finally, enforcement policies are subject to change. Companies and higher education institutions should design and implement compliance programs that are reasonably tailored to their risks, as determined by the FCPA and anti-money laundering statutes as well as current enforcement policy, in order to minimize internal disruption when faced with shifting enforcement policies going forward. [1] On February 5, Bondi issued a number of additional memoranda, including one that orders DOJ attorneys to adhere to "zealous advocacy" of the Trump administration's policies and to avoid substituting their own personal political views or judgments. General Policy Regarding Zealous Advocacy on Behalf of the United States.  Bondi also ordered DOJ to set up a task force to examine the “weaponization” of DOJ. Restoring the Integrity and Credibility of the Department of Justice. [2] See Ending Illegal Discrimination And Restoring Merit-Based Opportunity – The White House. EO 14173, among other things, revoked a series of prior well-established executive orders, such as EO 11246, signed by President Lyndon B. Johnson in 1965, that prohibited employment discrimination by federal contractors and subcontractors and requiring them to take certain affirmative actions to prevent employment discrimination. [3] A related Executive Order that DOJ likely will be enforcing in the private sector is EO 14168, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” which directed federal agencies to enforce laws governing sex-based rights, protections, opportunities, and accommodations to protect men and women as biologically distinct sexes, and to remove all statements, policies, regulations, forms, communications, or other internal and external messages promoting gender ideology. See Defending Women From Gender Ideology Extremism And Restoring Biological Truth To The Federal Government – The White House. [4] One legal scholar questioned whether Bondi’s memorandum will lead to successful lawsuits because “[a]successful civil suit against a DEI program would have to prove that a company was making specific employment decisions on the basis of race or favoring employees in the workplace based on their race, sex, sexual orientation, transgender status, or other characteristics protected by Title VII. That would be a very difficult case to make in the real world.” Noah Feldman, Attorney General’s DEI Memo Isn’t What It Seems, Bloomberg Law News (Feb. 2, 2025), Attorney General Pam Bondi’s DEI Memo Isn’t What is Seems - Bloomberg. [5] For a copy of the complaint, see 2025.02.03 Anti-DEIA EOs Complaint PDF. For EO 14151, see: Federal Register :: Ending Radical and Wasteful Government DEI Programs and Preferencing. [6] Examples of existing anti-discrimination statutes include Title VII of the Civil Rights Act of 1964 (prohibiting discrimination based on an individual’s race, color, religion, sex, or national origin); Section 503 of the Rehabilitation Act of 1973 (preventing disability-based discrimination); and Vietnam Era Veterans’ Readjustment Assistance Act (prohibiting military service-based discrimination). [7] See Dorsey’s recent eUpdates: Goodbye Affirmative Action Plan? President Trump Revokes Long-Standing Federal Contractor and Grantee Practices and Targets Private Sector DEI Initiatives with New Enforcement Initiative | News & Resources | Dorsey and Federal Assistance in Jeopardy? What to Know about OMB Guidance About Hundreds of Billions in Federal Research and Loans to Research Institutions, Universities, and Private Organizations | News & Resources | Dorsey. [8] In a separate memorandum, Bondi states that “President Trump has tasked the Department of Justice with an ambitious and historic mission: total elimination of Tren de Aragua (TdA), La Mara Salvatrucha (MS-13), and international drug cartels from the United States.” See General Policy Regarding Charging, Plea Negotiations, and Sentencing. [9] In a separate memorandum, Bondi has limited the reach of criminal charges brought under the Foreign Agents Registration Act to focus on “more traditional espionage by foreign government actors.” See General Policy Regarding Charging, Plea Negotiations, and Sentencing.