Since President Trump took office in January 2025, the current Administration has made a number of changes directly impacting diversity, equity, and inclusion (DEI) initiatives in the workplace.
Executive Orders Addressing Diversity, Equity, and Inclusion
Upon taking office, President Trump issued Executive Order 14151 Ending Radical and Wasteful Government DEI Programs and Preferencing, which terminates DEI and Diversity, Equity, Inclusion, and Accessibility (DEIA) programs within the federal government, including ending all equity actions/plans, initiatives, programs or equity related grants or contracts, and all DEI performance requirements for federal employees, contractors, and grantees. It also directs the elimination of DEI mandates, policies, and activities, as well as instructs federal agencies to end DEI-related offices and positions. Going forward, federal agencies should review employment practices to focus on individual merit, and report on DEI-related expenditures and activities.
Further, Executive Order 14173 Ending Illegal Discrimination and Restoring Merit-Based Opportunity orders all federal departments and agencies to end discriminatory and illegal preferences, practices, policies, etc., and to enforce civil-rights laws to target illegal DEI. This Executive Order specifically revokes Executive Order 12898 Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, Executive Order 13583 Establishing a Coordinated Government-wide Initiative to Promote Diversity and Inclusion in the Federal Workforce, Executive Order 13672 (Further Amendments to Executive Order 11478 Equal Employment Opportunity in the Federal Government and Executive Order 11246 Equal Employment Opportunity, and the Presidential Memo of October 5, 2026, Promoting Diversity and Inclusion in the National Security Workforce, including revoking Executive Order 11246 affirmative action obligations for federal contractors. There is now a requirement that every federal contractor or grant award must include a term certifying that the contractor or award recipient will not operate any programs promoting DEI, and a term requiring compliance “in all respects with all applicable federal anti-discrimination laws.”
Executive Order 14173 also encourages the private sector to end “illegal DEI,” informing that, with the assistance of the Attorney General, heads of agencies “shall take all appropriate action with respect to the operations of their agencies to advance in the private sector the policy of individual initiative, excellence, and hard work.” Further, the Executive Order mandates that a report must be submitted to the Assistant to the President for Domestic Policy within 120 days of the issuance of the Executive Order, containing recommendations for enforcement of “[f]ederal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.” This report must also include a proposed enforcement plan for achieving same.
Additionally, Executive Order 14168 Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government instructs all federal agencies to define “sex” only as a binary biological classification determined at conception. The Executive Order explicitly rejects “gender identity” in federal law and policy. It also requires sex-segregated spaces (like restrooms), and federal systems and identification documents (including passports), to be based on biological sex opposed to gender identity.
A number of former President Biden’s Executive Orders have also been repealed by the current Trump administration including those addressing and protecting gender identity and sexual orientation, racial equity and underserved communities, and pay equity and transparency.
Legal Challenges to DEI Executive Orders
These recent Executive Orders have faced a number of challenges in court. For example, in a recent case plaintiffs challenged President Trump’s Executive Orders Ending Illegal Discrimination and Restoring Merit-Based Opportunity and Ending Radical Government DEI Programs and Preferencing. National Association of Diversity Officers in Higher Education et al. v. Trump et al., No. 1:25-cv-00333 (4th Cir. 2025). On February 21, 2025, the District Court initially granted the request for a preliminary injunction temporarily prohibiting the administration from enforcing aspects of the executive orders prohibiting “illegal DEI” and on March 4, 2025, the District Court denied the Trump Administration’s motion to stay the implementation of the preliminary injunction. However, on March 14, 2025, the 4th Circuit lifted the injunction and ruled that as written, the Executive Orders do not inherently violate constitutional rights (1st and 5th amendment) as the scope of the Executive Orders are limited to activity that already violated existing anti-discrimination laws.
On March 27, 2025, in Chicago Women in Trades v. Trump, DOL, No. 1:25-cv-02005 (N.D. Ill. 2025), the U.S. District Court for the Northern District of Illinois issued a temporary restraining order (TRO) and memorandum of opinion and order preventing the Department of Labor (DOL) from enforcing certain key provisions in two of President Trump’s January 2025 issued Executive Orders. Specifically, the TRO enjoins the Certification Provision in Executive Order 14173 for DOL grant recipients as it attempts to regulate speech outside of federally funded programs (any programs promoting DEI irrespective of whether federally funded) and it is entirely vague as to what “illegal DEI” means. The TRO prevents the DOL from enforcing the Certification Provision and the Government from “initiat[ing] any False Claims Act enforcement against CWIT pursuant to the Certification Provision.” Further, the TRO enjoins the Termination Provision in Executive Order 14151 as to the plaintiff and its subcontractors receiving federal funds as it chills any protected speech that may touch upon what the government contends is DEI, DEIA, or equity.
Changes within the Equal Employment Opportunity Commission
There have also been a number of significant changes in the Equal Employment Opportunity Commission (EEOC). Upon taking office, President Trump appointed EEOC board member Andrea Lucas as acting chair. Some of Chairwoman Lucas’ priorities include rooting out unlawful DEI-motivated race/sex discrimination; protecting American workers from anti-American national origin discrimination; defending the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work; and protecting workers from religious bias and harassment, including antisemitism. Previously, Lucas dissented on the EEOC April 2024 Harassment Guidance regarding LGBTQ rights, and final rules under the Pregnant Workers Fairness Act relating to abortion protections.
Some of Lucas’ first actions as EEOC Chair were targeted at these priorities and included:
- Removing the agency’s “pronoun app” that allowed an employee to opt to identify pronouns internally and externally
- Ending the use of the “X” gender marker during the intake process for filing a charge of discrimination
- Directing modification of the discrimination charge and related forms to remove “Mx.” Prefix
- Reviewing the EEOC’s “Know Your Rights” poster, which all covered employers are required by law to post in their workplaces
- Removing materials promoting gender ideology on the EEOC’s internal and external websites and documents, including webpages, statements, social media platforms, forms, trainings, and others
Additionally, the EEOC has dropped the pursuit of employment discrimination claims on behalf of transgender individuals.
Further, President Trump, abruptly fired two out of three EEOC Democratic commissioners, Charlotte Burrows and Jocelyn Samuels (whose terms would have ended in 2028 and July 2026, respectively), as well as EEOC General Counsel Karla Gilbride (whose four-year term was set to end in 2027). As a result, the EEOC is left with two members, Chair Andrea Lucas, and Kolpana Kotagal, resulting in a lack of quorum.
Guidance from the Equal Employment Opportunity Commission (EEOC) and Department of Justice (DOJ)
On March 19, 2025, the EEOC and DOJ jointly issued a one-page technical assistance document entitled “What To Do If You Experience Discrimination Related to DEI at Work” as well as “a longer question-and-answer technical assistance document,” entitled “What You Should Know About DEI-Related Discrimination at Work” (referred to collectively as DEI Guidance). The DEI Guidance advises that the Title VII prohibition against discrimination and harassment applies to all workers, including those in mentorship, internship, or training programs, as well as to reverse discrimination claims by individuals from majority groups. The DEI Guidance further provides that there is “no general business interest in diversity and equity (including perceived operational benefits or customer/client preference)” that would be “sufficient to allow race-motivated employment actions.”
The DEI Guidance provides that although Title VII does not define DEI, the following DEI programs, policies, initiatives, etc., can be unlawful if an employer or other covered entity takes “an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic”:
- Unlawfully using quotas/balancing a workforce
- Disparate treatment in terms, conditions, privileges of employment
- Limiting, segregating, classifying employees based on protected characteristics
- Harassment based on protected characteristics in DEI training
- Retaliation against individuals who oppose DEI training
Even though DEI has become increasingly prominent throughout the U.S. in the last five years, it does not change anti-discrimination legal obligations. These documents are focused on educating the public about DEI in the workplace and how civil rights laws apply to DEI in the employment setting. EEOC Chair Lucas has stated that “‘no matter an employer’s motive, there is no ‘good,’ or even acceptable, race or sex discrimination.’”
Takeaways and Advice Moving Forward
In light of these recent developments, it is important for organizations and employers to review DEI efforts, programs, and policies to ensure that they are lawful and comply with federal and state anti-discrimination laws. Lawful DEI can occur when efforts are consistent with state and federal anti-discrimination laws. Lawful DEI efforts in the recruiting and hiring process can include widespread recruiting efforts, conducting panel interviews, utilizing standard criteria to evaluate candidates and employees, equal access to professional development, training, etc., and conducting training on topics such as unconscious bias and inclusive leadership.
However, employers should be mindful of the risks of implementing specific DEI programs and review any questionable DEI practices. Questionable DEI practices may include, but are not limited to:
- Quotas, preferences, plus factors set asides, and racial balancing programs
- Corporate commitment to supplier/vendor diversity initiatives mandating quotas
- Compensation/incentives/bonus tied to achieving diversity goals or penalties
- Diverse candidate slates or diverse hiring panel requirements
- Closed affinity or segregated groups for mentorship/leadership
- Employee training that includes race- or gender-based stereotyping
- Requiring diverse boards
Employers and organizations should keep in mind that DEI done right is consistent with anti-discrimination laws and providing equal employment opportunities for all. To ensure lawful DEI, employers should consider and conduct a privileged review of current and prospective DEI programs and assess the level of risk associated with such and then manage that risk level, tweaking as needed. Organizations should seek to reframe their DEI efforts and focus on company culture, leadership, and equitable and fair access to opportunities.
To find out more, please join our upcoming Lunch & Learn Understanding Trump’s Executive Orders on DEI and Immigration and Their Impact on the Workplace on Thursday, April 24, 2025 at 12:00 p.m. ET.
This summary is for informational purposes only and is not intended to constitute legal advice. This information should not be reused without permission.
