Earlier this month, the U.S. Office of Personnel Management (OPM) issued a memo titled, "Further Guidance Regarding Ending DEIA Offices, Programs, and Initiatives." The memo provided guidelines on implementing President Trump's executive orders, specifically Executive Order 14151 ("Ending Radical and Wasteful Government DEI Programs and Preferencing") and Executive Order 14173 ("Ending Illegal Discrimination and Restoring Merit-Based Opportunity"). On February 21, 2025, a federal district court issued a preliminary injunction blocking key provisions of these orders, citing First and Fifth Amendment constitutional violations.
The preliminary injunction temporarily halts enforcement measures such as terminating "equity-related" federal contracts, mandating DEI compliance certifications for contractors, and pursuing civil rights enforcement actions against certain DEI programs. With the injunction in place, the future of these directives is uncertain. It is nonetheless useful to be aware of the OPM's Guidance Memo, as it reflects Trump Administration priorities.
OPM's Guidance Memo:
A. Termination of DEIA Initiatives
In accordance with the executive orders, OPM directed federal agencies to discontinue any DEIA-related initiatives that could be deemed unlawful. This includes dismantling DEIA offices, policies, and programs that involve employment actions—such as recruiting, interviewing, hiring, professional development, promotions, and disciplinary measures—where protected characteristics are considered. OPM specifies that any employment decision influenced in whole or in part by protected characteristics constitutes unlawful discrimination. One highlighted example from the memo is the use of "diverse slate" hiring policies, which the memo categorizes as impermissible diversity mandates affecting hiring panel composition and candidate selection.
B. Retention of Certain Functions
The memo clarifies that agencies are not required to eliminate personnel, offices, or processes dedicated to addressing discrimination complaints, advising employees on related matters, collecting demographic data, or processing accommodation requests. If these responsibilities were previously managed within DEIA-focused offices, OPM instructs agencies to reassign these duties to other departments while ensuring that such functions remain strictly within their statutory scope.
C. Guidance on Employee Resource Groups (ERGs)
The memo also addresses Employee Resource Groups (ERGs), advising agencies to prohibit any ERGs that endorse unlawful DEIA initiatives. While the memo affirms that agency heads retain discretion over hosting social or mentorship events, these activities must align with the executive orders' emphasis on a merit-based federal workforce. OPM specifically states that no group or event may restrict participation based on protected characteristics. Agencies are cautioned against policies that allow certain racial or ethnic groups to form ERGs while excluding others or limiting participation in affinity-based events.
D. Disability Accommodations and Legal Compliance
Regarding disability accommodations, OPM asserts that the Biden Administration wrongly linked DEI efforts with legally mandated accessibility requirements. The memo states that, while President Trump's executive orders seek to eliminate discriminatory practices, agencies must continue to comply with the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. Programs related to disability accommodations, assistance, or accessibility that are required by law should remain intact.
E. Elimination of Special Emphasis Programs
Additionally, OPM instructs agencies to dismantle Special Emphasis Programs that factor protected characteristics into employment-related decisions, such as hiring, promotions, and training. These programs were originally designed to address underrepresentation in certain job categories or grade levels. Instead, the memo directs agencies to focus on merit-based employment practices.
Legal Challenges and Business Implications to the Executive Orders and OPM's Guidance:
The injunction blocks enforcement of key provisions in Executive Orders 14151 and 14173, specifically halting:
- The Termination Provision – Requiring agencies to cancel all "equity-related" grants or contracts.
- The Certification Provision – Mandating contractors certify that DEI programs do not violate anti-discrimination laws.
- The Enforcement Threat Provision – Directing the attorney general to pursue civil rights enforcement actions against certain DEI programs.
The court found these provisions likely violate First Amendment protections and Fifth Amendment due process rights, preventing federal agencies from suspending contracts, requiring certifications, or initiating enforcement actions based on these rules. The injunction does not impact the revocation of Executive Order 11246, however, which previously required federal contractors to take affirmative action in certain instances to promote equal employment opportunity, as discussed in this client alert here. The administration is expected to appeal, potentially leading to Supreme Court review.
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