On January 21, 2025, President Trump issued an Executive Order, titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” aimed at ending illegal Diversity, Equity, and Inclusion (DEI) initiatives and programs. Among other things, it directed federal agencies to combat illegal private-sector DEI “preferences, mandates, policies, programs, and activities.” A summary of the Executive Order from our last newsletter is available here.
About two weeks after its issuance, the Department of Justice (DOJ) issued a Memorandum (“Ending Illegal DEI and DEI Discrimination and Preferences”) to begin enforcing the Executive Order. In the Memo, the DOJ threatened criminal and civil charges and investigations against companies for having DEI programs and initiatives that exclude, divide, or discriminate based on race or sex.
In the two months or so since the Executive Order has been issued, employers have wondered what exactly constitutes an illegal DEI program or initiative. Unfortunately, neither the Executive Order nor the DOJ Memorandum clearly or comprehensively define what they prohibit.
It was that uncertainty, at least in part, that prompted one federal court in late February to temporarily block the Trump Administration from implementing several provisions in the Executive Order. The court ruled that the Executive Order was likely unconstitutionally vague and against constitutional guarantees of free speech. Among the court’s concerns was that the Executive Order lacked clear direction on what an impermissible DEI program was.
That ban, however, was short lived. A few weeks later, an appeals court reinstated the Executive Order. Even though the legal challenge to the Executive Order remains ongoing, the government may enforce the Order as the case makes its way through court.
Fortunately for employers, over the past few weeks, the government has issued guidance and taken other enforcement actions that provide some context around the types of workplace initiatives that might be deemed to be unlawful DEI programs.
On February 11, 2025, for example, the FCC Chair sent this letter to Comcast and NBC initiating an investigation into their respective DEI initiatives. The letter takes issue with, among other things, those companies touting DEI as a “core value of our business” and noting in publicly available reports that the companies have a “DEI infrastructure” that includes “DEI day[s],” “DEI training for company leaders,” and similar initiatives. The FCC’s letter described this as “promoting invidious forms of discrimination.” This shows how federal executive agencies are likely to respond to and interpret these types of initiatives (and DEI-related messaging) after President Trump’s Executive Order—even for programs that do something less than impose quotas or hiring preferences.
On March 6, 2025, President Trump issued another Executive Order that, among other things, directed the EEOC and Attorney General to probe the DEI initiatives of some of the country’s largest law firms. It asked for an investigation into whether the firms “reserve certain positions, such as summer associate spots, for individuals of preferred races; promote individuals on a discriminatory basis; permit client access on a discriminatory basis; or provide access to events, trainings, or travel on a discriminatory basis.”
In response, the EEOC started a broad enforcement inquiry into the 20 of the largest U.S. law firms by sending them letters asking extensive questions about their DEI efforts and identifying certain public statements by the firms that the EEOC viewed as potentially suggestive of improper DEI practices. The letters are collected here, but below is a brief summary of the general types of information that the EEOC demanded some of the firms to provide:
- Selection criteria used for applicants
- The hiring initiatives and selection process for those initiatives used by the firm
- Excel spreadsheets of applicants, broken down by sex and race and outlining various credentials (e.g., law school GPA), as well as compensation levels
- Communications with applicants and recruiters regarding “diverse” candidates
- Client diversity requirements
- Impact of DEI matters on employee compensation, partnership decisions, etc.
Shortly thereafter, the EEOC issued guidance titled “What You Should Know About DEI-Related Discrimination at Work,” outlining some examples of illegal DEI initiatives. Because the EEOC does not have a full quorum, this guidance does not carry the full force of law, but it does give us a sense of how the EEOC will interpret and react to certain situations when it is investigating employer compliance with anti-discrimination laws.
At its core, the EEOC’s guidance says DEI initiatives are unlawful if they involve an employer taking an employment action that is motivated, in whole or in part, by an employee’s race, gender, or other protected characteristic. It includes unlawful use of quotas or other efforts to “balance” a workforce, but it does not stop there. It includes obvious adverse employment actions (hiring, firing, promotions, pay, etc.), but the EEOC also cited the following examples of unlawful DEI practices: exclusion from training (such as leadership development training), exclusion from mentorship, networking, or training opportunities, exclusion from fellowships, and selection for interviews (including placement on candidate slates). According to the EEOC, it would also apply to limiting membership in ERGs (Employee Resource Groups) or affinity groups to certain protected groups, as opposed to making membership in those programs open to all.
Coincidentally, the Supreme Court of the United States is poised to issue an opinion in the coming months that dovetails with enhanced enforcement of DEI programs. In that case, the Court is deciding whether an employee asserting a “reverse” discrimination claim has to prove extra “background circumstances” to support his or her allegations.
“Reverse” discrimination claims allege that members of a historically majority group (such as Caucasians or males) have been discriminated against on their basis of their race, sex, or sexual orientation. For example, in the case currently before the Supreme Court, Ames v. Ohio Department of Youth Services, Ms. Ames contends she was the victim of “reverse” discrimination in that she was denied job opportunities because she is straight.
The Supreme Court is grappling with whether Ms. Ames must show particular “background circumstances” to support her allegations of reverse discrimination, such as for example, evidence that a member of a minority group made the employment discrimination or other evidence suggesting a pattern of discriminating against members of the majority group.
This case is significant as it relates to DEI initiatives because those types of programs could often form the factual basis for an employee’s reverse discrimination claim, such as, for example, that an employee was denied a job as a consequence of an employer’s workforce balancing initiative or lost out on leadership development training because he is a white man.
With the increased scrutiny on DEI programs from the federal government as well as the possibility of a Supreme Court decision making it easier for employees to privately challenge their employer’s DEI efforts, businesses would be wise to closely examine their DEI initiatives and any related public or internal messaging to ensure they are aligned with the guidance noted above and their obligations under federal and state anti-discrimination laws.
