Recent executive orders on “illegal diversity, equity, and inclusion” and related agency actions impact how all employers approach issues of gender identity in the workplace. After stating in his inaugural address that the United States government’s official policy would be that “there are only two genders,” President Trump issued Executive Order (EO) 14168, “Defending Women […]
Articles Discussing Workplace Diversity.
Ensuring Adequate Compliance Mechanisms in the Wake of President Trump’s DEI-Related Initiatives
On January 21, 2025, President Donald Trump issued an Executive Order targeting diversity, equity, and inclusion (“DEI”) and diversity, equity, inclusion, and accessibility (“DEIA”) initiatives. On February 5, 2025, Attorney General Pam Bondi released a memorandum furthering the policy initiatives behind Trump’s Executive Order.
DEI at Stake: Federal Groups Challenge Trump’s Efforts to Curb Inclusivity
The Trump administration is facing a new legal challenge to President Donald Trump’s executive orders (EOs) to eliminate diversity, equity, and inclusion (DEI) programs and initiatives after a group of diversity officers, professors, and restaurant worker advocates filed a lawsuit in a federal court in Maryland on February 3, 2025,
Attorney General Issues Memo Stating that Illegal DEI and DEIA Programs in Private Sector Will Be Prosecuted
The day after her nomination was confirmed last week, Attorney General Pam Bondi issued a memorandum to all Department of Justice employees on Wednesday, February 5th, stating that the USDOJ’s Civil Rights Division will begin investigating, prosecuting and penalizing illegal DEI and DEIA preferences, mandates, policies, programs and activities in the private sector (as well as in educational institutions that receive federal funds) that are based on race or gender.
Bondi states that this action is necessary to enforce federal civil rights laws and to encourage the private sector to end illegal discrimination and preferences. She did not indicate what would be considered illegal and what would not, other than to state that 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 are permissible.
This memorandum creates many questions about what is permissible and what is not, and it remains unclear how prosecutions will be handled and what penalties will be assessed for violators. It also remains unclear where the courts will draw the line on what types of DEI and DEIA programs are permitted and what types are inconsistent with applicable federal discrimination laws. The federal courts may not draw the line at the same place the Trump Justice Department decides to draw it. That will be determined as matters are prosecuted in the coming months.
It is difficult to determine exactly what actions an employer should take now in light of this memorandum, if any. It likely depends on risk tolerance, the specifics of any diversity efforts that the employer is currently engaged in or plans to engage in and other factors. However, at a minimum, employers who engage in any diversity efforts or initiatives should definitely discuss this memorandum with competent and experienced legal counsel as part of their consideration for reevaluation of any diversity efforts in light of the recent crackdown on DEI-related activities by the Executive Branch.
The Impact of President Trump’s EO’s on DEI: Essential Strategies for Employers
In light of President Trump’s recent Executive Orders, Diversity, Equity, and Inclusion (DEI) programs and policies are facing unprecedented scrutiny.
President Trump Issues Executive Orders Obstructing DEI Policies
Trump Rolls Back DEI in the US – Should UK Employers Change Course?
Almost immediately after taking the presidential oath of office, President Trump sprang into action, signing multiple executive orders that address diversity, equity and inclusion (DEI) programs and policies.
Ten State Attorneys General Launch Inquiry into Major Financial Institutions’ DEI & ESG Programs
A letter from 10 state Attorneys General to 6 major financial services companies signals an increase in state-level scrutiny of DEI and ESG practices.
President Trump Orders End of DEI
Within the first two days of President Trump taking office on January 20, he issued numerous Executive Orders. One of them, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” is aimed at “terminat[ing] all discriminatory and
New Executive Order Targets Federal DEI Practices
By: New Executive Order Targets Federal DEI Practices
By: New Executive Order Targets Federal DEI Practices
On January 21, 2025, President Donald Trump issued an Executive Order entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “Order”). The Order states that over 60 years following the enactment of the Civil Rights Act of 1964, preeminent American institutions improperly use race and sex-based preferences under the guise of “diversity, equity and inclusion” (“DEI”) and “diversity, equity, inclusion, and accessibility” (“DEIA”) in a manner that violates civil rights laws.
The Order specifically references the recent United States Supreme Court decision Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023) (“SFFA”), wherein a 6-3 decision, the Supreme Court held that the admissions processes at Harvard and the University of North Carolina violate Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment in the way the schools consider race. Notably, the SFFA Court held that while race cannot be used as a “plus” or deciding factor in university admissions, it does not exclude considering an applicant’s racial experiences if tied to unique character traits or abilities.
While many argue that SFFA does not outright prohibit DEI and DEIA initiatives, the Order states that all federal executive departments and agencies must “enforce anti-discrimination laws” and outright terminate all such discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements. The Order expressly revokes multiple Executive Orders and a Presidential Memorandum previously issued to promote diversity and inclusion in the federal workplace, government contracting, and national security workforce, among other areas, including with respect to environmental justice in minority and low-income populations.
The Order expressly provides that the Office of Federal Contract Compliance Programs (“OFCCP”) must immediately cease:
- (a) promoting “diversity,”
- (b) requiring federal contractors to take “affirmative action,” or
- (c) allowing or encouraging any federal contractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin (a practice already outlawed by SFFA and prior United States Supreme Court decisions such as Bakke v. University of California, 438 U.S. 265 (1978)).
The Order even directs the OFCCP to include language in its contracts and grants with federal contractors that states the contractors do not operate any programs “promoting DEI” that violate any applicable Federal anti-discrimination laws. The parameters of SFFA, its predecessors, and future cases addressing the SFFA opinion, must be carefully considered in analyzing what in fact violates existing anti-discrimination laws.
The Order does allow for the OFCCP to continue to enforce anti-discrimination and affirmative action initiatives for disabled persons and veterans under Section 503 of the Rehabilitation Act, 29 U.S.C. 793, the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), 38 U.S.C. 4212, and the Randolph-Sheppard Act, 20 U.S.C. 107 et seq. Those statutes will remain in effect under the Order.
Additional measures restricting DEI and DEIA initiatives will likely be taken against state and local educational institutions and institutions of higher learning (specifically those receiving federal funding, grants or student loan assistance) given that the Order requests that the Attorney General and the Secretary of Education jointly issue guidance within 120 days to ensure their compliance with the SFFA. Private employers nationwide can also expect to see more regulations from President Trump and his administration because the Order specifically mandates that all federal agency leaders, with the assistance of the Attorney General, take steps to advance anti-DEI/DEIA efforts in the private sector. The President has requested specific reporting to examine key sectors of concern, measures to deter DEI programs or principles, and potential federal lawsuits, among other “strategies to end illegal DEI discrimination and preferences.” Employers should pay particularly close attention to the rapid changes that are likely to be made in this area, but also be cautious as many states have their own anti-discrimination requirements that must be followed despite these changes on the federal level under the Order.
If you have questions regarding this Order, please do not hesitate to contact your favorite CDF attorney.
Will the Elimination of Efforts in the Federal Sector to “Build a Workforce That Reflects the Diversity of America” Impact the Private Sector?
Within days of his second inauguration, President Trump issued a number of Executive Orders. While the impact of his Executive Orders will be seen with time, many employers may be left wondering how the Executive Orders addressing Diversity, Equity, and Inclusion (“DEI”) impact them.
President Trump Relies on Executive Orders to Promote Anti-IE&D Policies
Since taking office on January 20, 2025, President Trump has issued several executive orders that address inclusion, equity, and diversity (IE&D) programs and policies. Although these orders are important to consider, employers should be aware that they do not alter federal civil rights laws. Indeed, the language used in these
Revocation of EO 11246 and Prohibition of Certain DEI Practices by the Trump Administration
President Donald Trump issued an executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (EO). Its stated purpose is to end illegal diversity, equity, and inclusion and diversity, equity, inclusion, and accessibility (together, DEI). The EO does not change existing law, but it signals the Administration’s focus on targeting
DEI and the Surge in States’ Workplace Legislation
“It’s harder and harder to be a day-to-day HR professional or managing legal in an organization due to the myriad of differences between state and local laws. That requires an analysis of whether we want to go to lowest common denominators, which involves consideration of stakeholders and costs, or whether we have the ability to operate different policies and systems in different states, which then interacts with IT and systems. It requires an overall analysis of where the organization wants to be. And now we have another issue that we always need to think about, which is humanity.
Fifth Circuit Nullifies Nasdaq’s Diversity Rule for Corporate Boards
A federal circuit court recently vacated a U.S. Securities and Exchange Commission (SEC) order approving Nasdaq’s diversity rule for boards of directors of public companies. The rule would have required corporate boards of Nasdaq-listed companies to have a minimum number of members from underrepresented demographic groups and to disclose information