DOJ follows through on warning about “illegal DEI.”
The U.S. Department of Justice filed suit against the State of Minnesota, alleging that the state’s hiring laws discriminate on the basis of race and sex.
The USDOJ contends that Minnesota’s civil service hiring law violates Title VII of the Civil Rights Act in multiple respects:
- The law requires consideration of affirmative action goals – which are based on underrepresentation of females and persons of color – for all personnel decisions.
- Goals for women and persons of color must be established if members of those groups are underrepresented, and timetables for satisfying the goals must be set.
- State agencies must evaluate the relevant labor market to quantify “What We Should Look Like” in terms of race and sex demographics. In other words, the state is allegedly making hiring decisions to ensure its workforce demographics match the expected race and sex numbers.
- If a state agency does not meet the affirmative action hiring goals, the hiring manager must justify the “nonaffirmative [sic] action hires” in a pre-hiring justification form, which creates additional burdens when hiring non-diverse candidates.
- State agencies that fail to meet affirmative action hiring goals for two consecutive years are reported to the Governor.
- State agencies that meet affirmative action goals are rewarded with incentives.
According to the USDOJ, these policies for selecting state employees violate Title VII by implementing race- and sex-conscious hiring practices. In effect, race and sex is necessarily a “but-for” factor used by the State in making employment decisions.
In a July 29, 2025, memo, the USDOJ identified these types of practices as problematic because they “prioritize[] candidates from ‘underrepresented groups’ for . . . hiring, or promotion, bypassing qualified candidates who do not belong to those groups, where the preferred 'underrepresented groups’ are determined on the basis of a protected characteristic like race.”
In addition, the lawsuit takes aim at legal precedent from the post-Civil Rights era that allowed limited efforts to eliminate racial imbalances in traditionally segregated jobs.
For example, in United Steelworkers of America v. Weber (1979), the U.S. Supreme Court held that private employers could develop affirmative action plans designed to undo years of past discrimination. The Court’s holdings, however, limit such voluntary action to very discrete circumstances.
To be lawful, such affirmative action plans must
- Advance Title VII's goal of breaking down old patterns of discrimination.
- Not unnecessarily trammel the rights of non-beneficiaries or create absolute bars to their advancement.
- Be temporary measures designed to eliminate manifest racial or sex imbalances in traditionally segregated job categories rather than maintain ongoing racial balance.
According to the USDOJ, the text of Title VII does not support any exception to the prohibition of race and sex discrimination, and the Supreme Court’s precedent on voluntary affirmative action should be overruled. The government relies on more recent case law, such as Bostock v. Clayton County, for its argument that, whenever an employer considers an individual’s race or sex, it violates Title VII.
Notably, the State of Minnesota recently “softened” its requirements for state contractors. Entities that do business with Minnesota and meet certain threshold requirements are required to submit affirmative action plans and obtain Workforce Certificates. Historically, contractors were required to evaluate the race and sex demographics of their workforces and compare that representation to availability data. If areas of underrepresentation were found for females or minorities, the contractor was required to set placement goals. Last year, however, Minnesota eliminated the requirement that contractors set goals where underrepresentation is identified – but the analysis itself is still required.
