As expected, President Trump has issued a slew of Executive Orders (“EOs”) during his first days in office that will have far-reaching implications for many aspects of the federal government and completely upend a plethora of policies implemented by the Biden administration. The labor and employment space is no exception.
Specifically, President Trump instituted sweeping changes to affirmative action, DEI, anti-discrimination policies, and other well-established employment practices. Highlighted below are key policy changes that are scheduled* to take effect in the coming weeks that every employer should know.
Trump Deems Affirmative Action, DEI, and DEIA Programming “Illegal” for all Federal Agencies, Federal Contractors, and Federal Grant Recipients
An EO issued on January 21, 2025, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” terminates and makes it illegal to implement Diversity, Equity, and Inclusion (“DEI”). and Diversity, Equity, Inclusion, and Accessibility (“DEIA”) policies, programs, and mandates within the federal government.
This EO also prohibits private sector employers doing business with the federal government from implementing such policies in name or substance. The mandate deems such policies illegal in that they “violate the text and spirit of [the country’s] longstanding Federal civil-rights laws” and “undermine our national unity.” This EO was issued in conjunction with President Trump’s rescission of Biden-era mandates focused on DEI for underrepresented groups, including those who are transgender, Hispanics, Black Americans, Asian Americans, Native Hawaiians, and Pacific Islanders. In addition, the EO revokes the 60-year-old EO 11246, which required contractors to engage in certain affirmative action activities.
Within 90 days of the EO, all federal contractors must immediately cease:
- promoting diversity;
- taking “affirmative action;” or
- engaging in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.
As a condition of receiving a federal contract or grant award, the contracting party or grant recipient must agree that it has complied with all aspects of this EO, including certifying that it does not operate any programs promoting DEI that violate any applicable federal anti-discrimination laws, as defined by the administration. Whether a specific form is required to complete this certification is yet to be determined.
This EO also authorizes the government to take steps to “encourage the private sector to end illegal DEI discrimination and preferences” and instead advance policies that focus on “individual initiative, excellence and hard work.” The federal government will be making a report to identify key sectors and practitioners believed to be in violation of this EO and to identify regulatory action, litigation, and other steps that may be taken to deter DEI programs or principles that conflict with this mandate.
The Trump administration is likewise terminating all DEI, DEIA, and environmental justice offices and positions within the federal government within 60 days of the EO. He ordered that staff serving in DEI positions be put on leave, pending review, as part of an upcoming reduction in force initiative.
Protections for Individuals Based on “Sex” Expressly Limited to Biological Sex, Excluding Protections for Workers Based on Gender-Based Identity or Ideology
According to the EO entitled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” issued on January 20, 2025, the federal government will now recognize only two sexes: male and female.
The term “sex” shall “refer to an individual’s immutable biological classification as either male or female” and expressly excludes the concept of gender identity. Specifically, “female” shall include only a person belonging, at conception, to the sex that produces the large reproductive cell, and “male” shall mean “a person belonging, at conception, to the sex the produces the small reproductive cell.” The EO states that these sexes “are not changeable.” This policy wholly rejects any “gender ideology” or “gender identity” that views gender on a spectrum or continuum that is changeable, subjective, or which differs in any way from an individual’s biological sex. Within 30 days of this EO, the federal government is directed to “enforce laws governing sex-based rights, protections, opportunities and accommodations to protect men and women as biologically distinct sexes,” and to refer only to the term “sex” and not “gender” in all applicable federal policies and documents. Agency forms that require an individual’s sex shall list male or female, will no longer include any reference to gender identity. President Trump has further revoked President Biden’s EOs aimed at preventing and combating discrimination on the basis of gender identity and sexual orientation (i.e. EO 13988, January 20, 2021).
In furtherance of redefining workplace protection from discrimination based on “sex,” the EO directs the Attorney General to immediately issue guidance to agencies to “correct the misapplication of the Supreme Court’s decision in Bostock v. Clayton County (2020),” which found that Title VII of the Civil Rights Act of 1964’s prohibition against “sex-based discrimination” to include discrimination based on gender identity. The government will therefore issue guidance to assist agencies in “protecting sex-based distinctions” only based on biological sex at conception.
The above sentiments were echoed by the newly-appointed Acting Chair of the Equal Employment Opportunity Commission (EEOC), Andrea Lucas. In her first statement to the press following her appointment by President Trump, Lucas said the EEOC will now prioritize “rooting out unlawful DEI-motivated race and sex discrimination; protecting American workers from anti-American national origin discrimination; [and] defending the biological and binary reality of sex and related rights, including women’s rights to single sex spaces at work,” among other initiatives. Nonetheless, Democrats control the EEOC until the second half of 2026, so there may be a delay in changing current EEOC rules and guidelines.
*We expect that these policies impacting affirmative action, DEI/DEIA, and gender-based protections in the workplace will face legal challenges and litigation in the coming weeks. Nevertheless, now is the time for federal contractors and federal grant recipients to review their affirmative action and DEI/DEIA policies and programs. Prudent employers should assess the requirements of these mandates, as compared to the needs of their operations and workforce, in conjunction with applicable state and local law.
Stay tuned for additional updates regarding enforcement of these EOs and how they are likely to impact your employment practices.
