On January 16, 2025, this blog presciently posed the question: "Is DEI Legal?" Just before President Trump's inauguration, I wrote that employers should take note that "many of the commentators and influencers involved in the incoming administration are openly hostile to 'DEI' policies."
Turns out I should have waited a week to post the blog. If I had been patient, the new administration would have clarified whether its open hostility to DEI on the campaign trail would translate to policy positions once in power.
First, on January 20, 2025, the Trump Administration issued an Executive Order called "Ending Radical and Wasteful Government DEI Programs and Preferencing." This EO essentially eliminates any DEI policy, program, or position within any governmental agency or department. Interestingly, it also tells agencies to assemble lists of any contractors who have provided DEI training to governmental agencies or departments in the past – presumably to ensure that such contractors are not extended any more work. (Indeed, a week later, the Trump Administration's Office of Management and Budget issued a separate order that declared a stoppage to all financial assistance programs until government agencies could ensure that federal funds were not being used in contravention of recently issued Executive Orders, including those related to DEI.)
Second, on January 21, 2025, President Trump issued another order, this one called "Ending Illegal Discrimination and Restoring Merit-Based Opportunity." In this EO, the new administration openly targets "influential institutions of American society" that have "adopted and actively use dangerous, demeaning, and immoral race- and sex-based preferences under the guise" of DEI. The order rescinds a different, sixty-year-old EO from the Johnson Administration that implements civil rights protections for federal contractors. It requires that all contracts with federal contractors include assurances that such contractors do not adopt DEI policies (meaning that a contractor following DEI principles would thereafter be engaged in government fraud). And it broadly instructs agency heads, together with the Attorney General, to identify private sector areas within those agencies' jurisdiction that may serve as targets for governmental litigation against DEI.
Of course, you do not have to read these orders to discern the new administration's stance on DEI. After a commercial plane tragically collided with a military helicopter on January 29, 2025, President Trump almost immediately attributed the disaster to "DEI" and said that such attribution needed no further evidence – it was a matter of "common sense."
As a result, companies that have historically merely paid lip service to principles of diversity, equity, and inclusion will consider stopping altogether even this cosmetic support. And private sector entities that sincerely adopt DEI principles will need to closely tailor their approach and strategy, given the administration's directive to put such issues in the crosshairs. Efforts at diversity, inclusion, and equity in the workplace should be thoughtful and with a close eye toward legal compliance – in other words, not ham-fisted, like this:
All that said, nothing about these executive orders changes the fundamental civil rights laws that have been enshrined by Congress for decades. Title VII of the Civil Rights Act (prohibiting discrimination on the basis of race, sex, religion, color, and ethnicity), the ADEA (age), and the ADA (disability) are all still in place. These laws typically have state-law counterparts, as well, which similarly make it illegal to discriminate in the workplace on such protected characteristics. So, it is very much still illegal to discriminate based on these protected classifications. Indeed, the current Executive Branch position is that "illegal DEI policies" – which perhaps just means any DEI policies? – themselves violate these federal civil rights laws and "undermine national unity."
It certainly is the prerogative of private entities to follow suit of the Federal Government to eliminate DEI initiatives altogether, or disregard modern notions of DEI. However, if they find that employee ranks, meetings, conferences, leadership groups, or leadership positions are comprised entirely of only specific demographics, they should also not be surprised to find themselves wrestling with more traditional legal challenges related to race- and sex-based bias against traditionally underrepresented groups, as the laws protecting those groups still very much remain in place.
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