Background: Anti-DEI Executive Orders

In January, President Trump issued Executive Orders (EO) 14151 and 14173 targeting federal diversity, equity, and inclusion (DEI) programs and DEI-based preferences in federal contracting. The EOs directed federal agencies to terminate equity-related contracts, required federal contractors and grantees to certify they do not operate illegal DEI programs — under threat of False Claims Act (FCA) liability — and called for enforcement to deter unlawful DEI practices in the private sector.

A Maryland district court enjoined these provisions nationwide, citing vagueness and First Amendment concerns. The district court found undefined terms like “illegal DEI” chilled protected speech and encouraged overcompliance.

To learn more about EO 14173: Ending Illegal Discrimination and Restoring Merit-Based Opportunity, view Taft’s initial coverage here.

Aug. 4 Update: DOJ Provides Another Puzzle Piece in the “Illegal DEI” Puzzle

On July 29, the DOJ released a memorandum, “Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination,” which purports to clarify the application of federal antidiscrimination laws to programs or initiatives that may involve discriminatory practices, including those labeled as DEI programs. For an analysis of the memorandum, view Taft’s complete law bulletin here.

March 19 Update: EEOC and DOJ Release Federal Guidance on Title VII and DEI in the Workplace

To learn more about key takeaways to consider, please view Taft’s complete law bulletin for employers here and our law bulletin for federal contractors here.

March 14 Update: Fourth Circuit Lifts Nationwide Injunction on Trump’s DEI Executive Orders

On March 14, the Fourth Circuit lifted the injunction, allowing enforcement of the EOs to resume during appeal. The court accepted the Trump administration’s position that the EOs merely seek to enforce existing anti-discrimination laws as written and do not ban all forms of DEI. The three-judge panel unanimously decided the EOs are not clearly facially unconstitutional and held that the government showed a sufficient likelihood of success on the merits to warrant a stay.

Though not a final ruling, the decision allows agencies to begin implementing the EOs while litigation proceeds.

To learn more about implications for federal contractors, grant recipients, and private sector employers, along with key compliance considerations going forward, view Taft’s complete law bulletin here.

Feb. 21 Update: Initial Injunction

A Maryland district court enjoined these provisions nationwide, citing vagueness and First Amendment concerns. The district court found undefined terms like “illegal DEI” chilled protected speech and encouraged overcompliance.

Follow-up to Executive Order on DEI: A Take-Home Message for (we hope) Clarity:

We know there’s confusion. Here’s a “take-home” synopsis: The President’s Executive Order of Jan. 21, 2025, banned preferring members of certain races, colors, national origins, religions, or sexes for employment opportunities. That means specifically hiring a person because they are, for example, Asian, Jewish, Female, of Armenian descent, or of any other race, color, religion, national origin, or sex*. It underscored equal opportunity. That means it is an unlawful employment practice for an employer to fail/refuse to hire, to discharge, or otherwise to deprive any individual of employment opportunities because of or on account of the individuals’ race, color, religion, sex, or national origin (liberal paraphrase of Title VII’s Unlawful Employment Practices language).

In a nutshell: Consider qualifications for the job and not an applicant’s or employee’s race, sex, national origin, color, or religion. Employers may not have hiring quotas for applicants/employees from particular classes. Employers may not prefer certain people for employment opportunities because they belong to one of those classes. That also includes not preferring white people, males, or any other members of those five classes. You may still exercise a preference for employing veterans.

Remember: so far, this technically applies only to federal government agencies and federal grant recipients. There are plans, however, to encourage the private sector to follow suit.

What the Executive Order Does NOT Do:

• Abolish or amend equal employment opportunity laws, such as Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and other anti-discrimination statutes.
• Outlaw DEI programs so long as the programs do not prefer employees or candidates because they are members of any particular race, color, national origin, sex, or religion. Candidates and employees are to be judged and chosen on their individual merits.

*Note: We believe that “sex” as used here refers to the designation assigned at birth considering biological factors. “Gender” is generally taken to mean an individual’s personal identification with one sex or another or with no sex.