DOJ issued new guidance for all recipients of federal funding reinterpreting federal antidiscrimination laws to prohibit a broad range of activities previously understood to be legal under existing civil rights laws and court precedent. The guidance identified non-binding “Best Practices” for compliance with federal law, deterring recipients from engaging in the following activities, among others:
- Using facially neutral criteria in hiring, including “cultural competence”, “cross-cultural skills”, “lived experience”, “socioeconomic status”, “first-generation status” or “geographic diversity”. DOJ asserted these criteria are illegal when used as “proxies” for protected characteristics.
- Prioritizing “underrepresented groups” for hiring, admission, or promotion where groups are determined on the basis of a protected characteristic.
- Designation of “safe spaces” exclusively for students of a specific racial or ethnic group.
- Allowing gender neutral restrooms, locker rooms, or dormitories.
DOJ did not state how it would use the guidance in its enforcement activities, or clarify how it would determine whether a recipient is using facially neutral criteria as a proxy for consideration of protected characteristics.