Revoking, Eradicating, and Eliminating Diversity, Equity, and Inclusion (DEI) Policies Everywhere
Feb 07, 2025Revoking, Eradicating, and Eliminating
Diversity, Equity, and Inclusion (DEI) Policies Everywhere
Trump’s Executive Orders Affect All Government Contracts,
Contractors, and Private Businesses
Among the many Executive Orders signed by President Trump on January 20, 2025, is one entitled Initial Rescissions of Harmful Executive Orders and Actions. It revokes a long list of President Biden’s Executive Orders. Reviewing the list of “revoked orders,” it becomes clear that the new administration is laser-focused on eradicating and reversing the previous administration’s diversity,equity, and inclusion (DEI) efforts. Among the revoked orders were the following:
- Executive Order 13988, Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation
- Executive Order 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government
- Executive Order 14091, Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government
- Executive Order 14020, Establishment of the White House Gender Policy Council
Then, on January 21, 2025, in a new Executive Order entitled Ending Illegal Discrimination and Restoring Merit-Based Opportunity, President Trump articulated several concrete actions that his administration intends to take to eradicate DEI programs not only in the federal government but also in the private sector.
Trump’s January 21 Executive Order reaches back to the very beginning of affirmative action and revokes Executive Order 11246, which was issued by President Lyndon Johnson in October 1965 and prohibited employment discrimination on the bases of race, color, religion, sex, and national origin by companies doing business with the federal government. In 2014, through Executive Order 13672, President Barack Obama had added sexual orientation and gender identity to the list of prohibited employment discriminatory practices.
An additional Trump Executive Order, dated January 22, directs all government agencies to remove any remaining DEI-related language and programs from their operations and contracting agreements and instructs the Office of Federal Contract Compliance Programs within the United States Department of Labor to “immediately cease:
(A) Promoting “diversity;”
(B) Holding federal contractors and subcontractors responsible for taking ‘affirmative action;’ and
(C) Allowing or encouraging federal contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.”
The Executive Order also directs the Director of the Office of Management and Budget, with the assistance of the United States Attorney General, to:
- Excise references to DEI and DEIA [diversity, equity, inclusion, and accessibility] principles under whatever name they may appear, from federal acquisition contracting, grants, and financial assistance procedures to streamline those procedures, improve speed and efficiency, lower costs, and comply with civil rights laws.
- Terminate all ‘diversity,’ ‘equity,’ ‘equitable decision-making,’ ‘equitable deployment of financial and technical assistance,’ ‘advancing equity’ and like mandates, requirements, programs, or activities as appropriate.
Eradicating DEI
For decades, many federal contractors and subcontractors have been required to create affirmative action plans and promote diversity, equity, and inclusion practices. Some workforce development and human resource professionals, and many others, believe that creating affirmative action plans and related DEI programs are necessary for the realistic long-term realization of “equal employment opportunities for all.” Others, including President Trump and many of his supporters, disparage such practices as inherently discriminatory and contrary to American principles.
Instead of promoting a system based on “equal opportunity,” President Trump states he is promoting a system based on the — as yet undefined — concept of “merit.” In his Executive Order, he directs all agency heads to “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.”
To underscore this dramatic philosophical shift in policy, the new Acting Chair of the Equal Employment Opportunity Commission (EEOC), Andrea R. Lucas, said in a January 21, 2025 press release that she supports the President’s agenda. “My priorities will include rooting out unlawful DEI-motivated race and 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; protecting workers from religious bias and harassment, including antisemitism; and remedying other areas of recent under-enforcement.”
In a coordinated effort to eradicate affirmative action and DEI business practices in all public and private commerce, President Trump has not only revoked all Executive Orders relating to diversity, inclusion, and other “equal employment opportunity” actions going back to 1965, but he has also asked government agencies to identify businesses and other organizations that continue to make use of DEI-related practices. These businesses and organizations could become targets of future enforcement actions.
Targeted Enforcement
Over the next 120 days, the Attorney General, “in consultation with the heads of relevant agencies and in coordination with the Director of OMB,” is directed to submit a report “containing recommendations for enforcing federal civil rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.” The report must contain a proposed strategic enforcement plan “of specific steps or measures to deter DEI programs or principles (whether specifically denominated “DEI” or otherwise) that constitute illegal discrimination or preferences.”
As part of this strategic enforcement plan, each federal agency is required to identify enforcement targets — “up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, state and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars.”
Remaining Obligations
Some of the federal government’s historical nondiscrimination obligations remain in place. Federal affirmative action, nondiscrimination, and reasonable accommodation requirements for disabled individuals and protected veterans are still in place. Those obligations are based on statutes—the Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA)—and are not subject to executive action.
Also, the Trump Executive Orders do not alter federal nondiscrimination, non-harassment, and anti-retaliation statutory obligations regarding race, color, sex, gender, sexual orientation, sexual preference, pregnancy, religion, national origin, age, and disability under Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967, and the Americans with Disabilities Act.
Uncertainty Reigns
Some companies are already dropping their DEI programs, while others are not. Many questions remain about what constitutes “illegal” DEI, so employers must watch for new developments and guidance from the Office of Federal Contract Compliance Programs (OFCCP). Hopefully, that guidance will be coming soon. While we wait, it could be highly beneficial to work with legal counsel to review your current policies, programs, employee development efforts, and business objectives, and identify possible compliance inconsistencies with these evolving rules.
All large employers should begin to plan now for the publication of the Attorney General’s report. This report, containing initial recommendations for enforcement actions, is scheduled for publication on May 21, 2025. Based on all current indicators, the Trump Administration plans to file litigation against private employers that maintain perceived DEI-inspired policies and practices.
By targeting private employers, the Trump Administration seeks to extend the reach of last summer’s decision by the United States Supreme Court (USSC) — Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 20-119. This landmark decision said that the affirmative action programs at Harvard — which informed admission decisions based on race and color — were in violation of the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. Following in the wake of this decision, Trump’s recent Executive Orders could signal new litigation against public and private employers alike that maintain their DEI-inspired policies and practices.
Civil rights groups are expected to challenge many aspects of these Executive Orders, but court challenges take time, and employers will have numerous real-time compliance obligations to meet in the meantime. Federal contractors and subcontractors will still have contract obligations related to federal and state laws—EEO-1 and VETs-4212 filings, for example.
It’s important for employers to follow the emerging legal challenges as well as the evolving regulatory communications and guidance from the OFCCP on this topic. There is considerable confusion and uncertainty about the ultimate ramifications (and legality) of many of these executive actions. For most employers, developing a game plan to comply — or determining whether they need to comply — is a good idea. Having a plan could be especially important if an audit before the OFCCP is pending.If you would like assistance developing your game plan — or have any other questions or concerns about how these recent developments will affect your business — don’t hesitate to contact Orr & Reno.
