IS DEI EFFECTIVELY DOA? The Trump Administration’s Mandates on DEI and Its Impact to Employers

By: Nakota G. Wood and James V. Thompson

Diversity, equity, and inclusion (“DEI”) and diversity, equity, inclusion, and accessibility (“DEIA”) initiatives have been a major talking point for employers over the last few years. DEI initiatives were created with the intent to promote fair treatment and participation for all, particularly individuals who have historically been marginalized and faced discrimination. Although DEI is a broad term that is not defined under Title VII of the Civil Rights Act of 1964 (“Title VII”) or any other federal statute, it has found notoriety in multiple presidential executive orders over the last decade. The current Trump Administration, from its opening day of January 20, 2025, has most recently issued a number of executive orders posed to end preferential treatment based on DEI and DEIA. Two specific Trump Administration executive orders need to be at the forefront of employers’ minds in order for businesses to ensure compliance and plan accordingly in addressing human resource needs and activity.

Current State of DEI

Executive Order 14151

Trump’s Executive Order 14151 titled “Ending Radical and Wasteful Government DEI” (“Executive Order 14151”) seeks to end DEI and DEIA programs and offices within the Federal government. The order rescinds President Biden’s Executive Order 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.” The Biden order required Federal agencies and entities to submit “Equity Action Plans” detailing how the agencies furthered the DEI goals of the Federal Government.

Under Executive Order 14151, the Director of the Office of Management and Budget (“OMB”), Attorney General, and the Director of the Office of Personnel Management (“OPM”) are to coordinate an end to all discriminatory programs. This Order includes DEI- and DEIA-related initiatives as being such “discriminatory” programs. Thus, the OPM Director is to review and revise all existing Federal employment practices, union contracts, and training policies to comply with this end to DEI. Employee performance review and other employment practices are now to reward individual initiative, skills, performance, and hard work and not to consider any DEI or DEIA factors, goals, or mandates. Further, each Federal agency, department, or commission head is to terminate all DEI, DEIA, and “environmental justice” offices and positions (such as “Chief Diversity Officer”) and provide a list of all such positions and their related programs, services, and expenditures as of November 4, 2024, (the day before President Trump’s latest election). While this order does overhaul DEI-related employment practices, its scope is limited to the Federal Government as an employer and contractor.

Executive Order 14173

Trump’s Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (“Executive Order 14173”) is poised to have a more profound impact on DEI and DEIA initiatives among private employers. Instead of addressing governmental personnel practices, it addresses the policy of protecting individuals from discrimination based on race, color, religion, sex, or national origin under the Civil Rights Act. The order does not define what constitutes “illegal discrimination,” but nonetheless takes the position that Federal civil-rights laws adequately protect Americans from protected class-based discrimination, while DEI and DEIA programs, in turn, violate those civil rights protections.

Executive Order 14173 requires all Federal executive departments to “terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements.” Interestingly, the Department of Labor’s Federal Contract Compliance office must immediately cease promoting “diversity,” and federal contractors are no longer responsible for taking “affirmative action” nor allowed to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin. Further, federal contractors and grant recipients must include contract provisions certifying that they do not “operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.”

Aside from the provisions striking at federal contract and grant terms, Executive Order 14173 requires the heads of all agencies and the Attorney General to take all appropriate action to advance policies of “individual initiative, excellence, and hard work” in the private sector, as well as to provide a report to the President on recommendations for enforcing Federal civil rights laws and taking other measures to encourage the private sector to end discrimination and preferences, including DEI. The report is to include a strategic enforcement plan that notes:

• A listing of the most egregious and discriminatory DEI practitioners in each sector of each Federal agency;
• Specific steps to deter DEI programs or principles;
• Identification of up to nine (9) potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with $500 Million or more in assets, state and local bar and medical associations, and higher education institutions with endowments over $1 Billion;
• Potential regulatory action and guidance;
• Litigation potentially appropriate for Federal lawsuits or intervention; and
• Other strategies to encourage private businesses to end DEI preferences.

Executive Order 14173 applies to all companies, including private businesses, and has implications to reach both large and small employers.

Reactions by Federal Agencies and the Courts

As a result of Executive Order 14173, a February 5, 2025, memorandum from the Attorney General, stated that “the Department of Justice’s Civil Rights Division will investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector….” On March 19, 2025, the Justice Department and EEOC issued joint guidance warning against unlawful DEI-related discrimination. In the accompanying press release, EEOC Acting Chair Andrea Lucas stated:

Far too many employers defend certain types of race or sex preferences as good, provided they are motivated by business interest in ‘diversity, equity, or inclusion.’ But no matter an employer’s motive, there is no ‘good,’ or even acceptable, race or sex discrimination. . . . In the words of Justice Clarence Thomas in his concurrence in Students for Fair Admissions, ‘two discriminatory wrongs cannot make a right.’

The Justice Department and EEOC’s technical document, “What to Do If You Experience Discrimination Related to DEI at Work,” now encourages employees who have experienced discrimination to contact the EEOC as soon as possible due to strict time limits for filing charges.

Both of these executive orders have been subject to legal scrutiny and challenges in the federal court system. At the time this article was drafted, two federal district courts have issued preliminary injunctions on various provisions of these executive orders. The preliminary injunctions temporarily prohibit the Trump administration from taking certain actions under the orders until the cases are fully resolved. One injunction precludes the U.S. Labor Department from pausing, blocking, or canceling a grant, changing the grant terms mid-period, or initiating any False Claim Act enforcement. Chi. Women in Trades v. Trump, 2025 U.S. Dist. LEXIS 70457 (N.D. Ill. April 14, 2025). While it may apply specifically to one discrete grant recipient, the general premises—that grant recipients have standing to challenge the Executive Orders and may face irreparable harm from enforcement of the orders, and that public interest favors a preliminary “time out” while constitutionality is determined—may spread and apply in other similar situations.

Additionally, the U.S. Supreme Court very recently ruled in a reverse discrimination claim that Title VII of the Civil Rights Act does not require a member of a majority (non-minority) group to show “background circumstances” to support the suspicion that a defendant employer discriminates against the majority. Ames v. Ohio Dep’t. of Youth Servs., No. 23-1039, 2025 U.S. LEXIS 2198 (June 5, 2025). Simply put, it is unlawful to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual, with respect to the individual’s compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin—regardless whether that individual is in a minority group or a majority group. This ruling reduces the previous standard, at least as used in the Sixth Circuit, to establish a reverse discrimination claim. Thus, the Ames ruling may help bolster these Executive Orders to the extent DEI initiatives are seen as favoring minority-group individuals on the basis of race, color, religion, sex, or national origin, rather than on the individuals’ merit and work performance.

How do Employers Plan for the Future?

Just a few short years ago, “DEI” was the trendy buzzword in HR, so that companies could show their commitment to treating all employees and job candidates fairly. Now, those notions of diversity, equity, and inclusion, meant to cast a wider net in job markets and create more stepstools to give everyone a more equitable opportunity at successful employment, have been labeled as harmful in encouraging employee hiring and promotion for discriminatory reasons. The same classifications used in 1964 and subsequent years to protect against discrimination are now still relied upon to prevent discrimination now, but almost in an inverse sense. The provisions of Executive Order 14173 calling for the Attorney General’s activity in potential civil compliance investigations, litigation, and a “listing of the most egregious and discriminatory DEI practitioners” certainly casts a chilling fog of concern for employers. Notably, the timing of these Executive Orders coming so quickly after the start of a new Administration sets the tone for a long four years ahead. DEI may indeed be dead, in convalescence, or even in an isolation ward for the present time and near future, depending on how courts address challenges to these Executive Orders.

In the meantime, employers are left to expect the best and plan for the worst. Employers should be mindful of decisions where the challenged basis could be reverse-diversity discrimination. For example, an employer might be wary of a white male candidate potentially claiming reverse discrimination if the employer selects someone else for a position or promotion if the other person was younger, female, or of a different race. The employer would be on the defensive, once the claim is raised, to justify its decision based on other objective or subjective factors. Employers should seek to have solid merit-based reasons for all employment-related decisions, from a potential employee’s application to promotions between employees, to even termination over a job performance or workplace environment dispute. Employers must also be vigilant in training all levels of management on how to address DEI practices so that such practices do not become an easy means of unraveling otherwise well-thought employment actions. Majority-group members no longer have an extra hurdle to establish background circumstances for suspicious reverse discrimination, so they may be more emboldened to challenge adverse employment actions. Employers cannot “blow off” allegations merely because the claimant is in a traditionally advantaged demographic group (e.g., white, young, male, straight, or Christian). Having evaluated discrimination claims based on protected classes from certain fixed or focused perspectives for many years, employers will now need to consider potential discrimination concerns from multiple additional angles in order to ensure employment actions are handled fairly and responsibly for all persons involved.