Chai Feldblum said employers may consider framing their programs on inclusion and preventing discrimination.
Dive Brief:
Specifically, Feldblum said that employers could state that they are committed to creating inclusive and fair workplaces and ensuring that no person is discriminated against on the basis of race or sex. Employers also may state that they operate a community in which “everyone works together,” in reference to Bondi’s focus on divisive DEI programs. Feldblum said her thoughts were not legal advice and that employers should seek legal counsel.
Chai Feldblum, former Democratic commissioner for the U.S. Equal Employment Opportunity Commission, said in a LinkedIn post Thursday that employers may consider certain framings for their diversity, equity and inclusion initiatives after the U.S. Department of Justice published a memo targeting private-sector DEI programs.
Attorney General Pam Bondi’s Feb. 5 memo stated that DOJ would “investigate, eliminate and penalize” DEI programs that “discriminate, exclude, or divide individuals based on race or sex.” The memo is a follow up to President Donald Trump’s Jan. 21 executive order directing federal agencies to crack down on DEI in the private sector.
Dive Insight:
Feldblum expressed some confusion about aspects of Bondi’s memo, particularly the attorney general’s focus on programs that “divide” individuals based on race or sex. She said she questioned whether courts would adopt DOJ’s approach toward DEI as well as accessibility programs moving forward.
“The question is – How will DOJ interpret the terms ‘discriminate,’ ‘exclude’ and ‘divide’? (What the hell does ‘divide’ mean anyway?),” Feldblum wrote. “If DOJ interprets those terms too broadly, I think it will have trouble in the courts — even with the courts we have now.”
Feldblum served at EEOC during the first Trump administration and prior to the U.S. Supreme Court’s 2020 decision extending the antidiscrimination protections of Title VII of the Civil Right Act on the basis of sexual orientation and gender identity. At the time, Feldblum and the rest of EEOC openly clashed with the Trump administration over the inclusion of LGBTQ+ protections in Title VII.
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