EXECUTIVE ORDERS ATTACKING DEI PROGRAMS
Since taking office on January 20, 2025, President Donald J. Trump has issued a significant number of Executive Orders and taken other actions designed to eliminate or dismantle Diversity, Equity, and Inclusion programs and policies across the federal government and the private sector. Some of the higher profile actions include:
• Executive Order 14173 titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” EO 14173 ends non-discrimination and affirmative action requirements under Executive Order 11246, the 1965 Executive order by President Lyndon Johnson that required government contractors and grantees to establish affirmative action programs. Contractors and grantees may continue to comply with the old program for 90 days, but then must comply with the new executive order, including certifying to the contracting agency that (i) they do not operate any “illegal” DEI programs, and (ii) “compliance in all respects with all applicable Federal anti discrimination laws is material to the government’s payment decisions” for purposes of the False Claims Act (“FCA”). EO 14173 also requires the U.S. attorney general to create a strategic enforcement plan identifying specific enforcement targets in the private sector for DEI programs this administration believes violate federal antidiscrimination laws.
• In coordination with EO 14173, The Trump administration has ordered the Office of Federal Contract Compliance Programs (OFCCP) to stop enforcement of EO 11246, including halting all active litigation, audits, and other enforcement actions relating to that law as well as holding in abeyance any audit related to the two other affirmative action laws OFCCP enforces for individuals with disabilities and protected veterans.
• Executive Order 14168 titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”, defines “sex” as an “individual’s immutable biological classification as either male or female.” It mandates various actions to remove “gender identity” protections across the government and in the private sector, and seeking legislation to overturn the U.S. Supreme Court’s decision in Bostock v. Clayton County, finding gender identity discrimination is prohibited by Title VII of the Civil Rights Act.
• Recently confirmed U.S. Attorney General Pam Bondi issued a February 5, 2025 memorandum requiring the Department of Justice (DOJ) Civil Rights Division and Office of Legal Policy to submit a report with recommendations for enforcing civil rights laws to end “illegal” DEI programs in the private sector, consistent with EO 14173, including criminal investigations of corporate DEI programs. The memo also provides that the DOJ’s Civil Rights Division will “investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector.” This could put incredible pressure on private companies to eliminate or streamline DEI programs and could lead to a cottage industry of whistleblower claims by unhappy employees.
Almost all of these actions were immediately challenged in courts across the U.S. It is unclear how successful these challenges will be, although some may find supportive judges willing to issue preliminary injunctions to stop the changes for a period of time. But recent Supreme Court decisions have given the Trump Administration hope that the cases will ultimately be decided in their favor.
In the next edition, we will address the practical impact of these changes on private sector businesses, including taking a look at which aspects of DEI programs likely will be deemed illegal.
