On Jan. 21, 2025, President Donald Trump issued an executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (EO). Its stated purpose is to end illegal diversity, equity, and inclusion and diversity, equity, inclusion, and accessibility (together, DEI).
The EO comes a day after President Trump signed the executive order on “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” and a slew of Day 1 orders regarding DEI. The EO instructs federal agencies to take specific actions to end “illegal” DEI in federal contracting. It also directs agencies to encourage private employers to eradicate illegal DEI.
The EO states, “It is the policy of the United States to protect the civil rights of all Americans and to promote individual initiative, excellence, and hard work. I therefore order all executive departments and agencies to terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements.”
The EO does not change existing law regarding discrimination in contracting, employment, or otherwise. Rather, it signals the Administration’s focus on targeting organizations that violate existing anti-discrimination laws in their employment practices. The key message (which is not necessarily new): Employers should focus on ensuring their DEI practices comply with equal employment opportunity laws.
Read the full article
Trump Administration Revokes EO 11246, Prohibits ‘Illegal’ DEI: What the EO Ending Illegal Discrimination and Restoring Merit-Based Opportunity Means for Employers
Jackson Lewis | Jan 2025
Read the text of the Executive Order
EO Impact Zone, A Guide for HR Leaders
The First 100 Days
Webcast: Navigating the Two DEI Executive Orders: Merit-Based Practices and Belonging in the Evolving Policy Landscape
SHRM
Articles
Questions remain as to what constitutes “illegal DEI” – an undefined phrase that is used throughout the executive order. Arguably, the order defines prohibited conduct as: (1) illegal discrimination and preferences; and (2) workforce balancing based on race, color, sex, sexual preference, religion, or national origin. This would be no different from existing federal law, because quotas have always been unlawful under Title VII.
However, the Trump administration has indicated that its objectives go beyond reinforcing Title VII. For example, the executive order broadly paints all DEI policies as part of an “unlawful, corrosive, and pernicious identity-based spoils system,” and in the government context it even goes so far as to ban the Office of Federal Contractor Compliance Programs – the agency tasked with ensuring federal contractors comply with nondiscrimination rules – from promoting diversity at all.
Trump Orders Feds to Combat “Illegal” Corporate DEI Programs: 5 Takeaways for Private-Sector Employers + What You Should Do Now
Fisher Phillips | Jan 2025
While this may be obvious, we believe it worth mentioning, given some of the early market reactions to the Executive Order: federal anti-discrimination laws that apply to private employers, including Title VII, the ADA, the ADEA, and other measures, are still the law of the land and employers should make sure to reinforce their existing anti-discrimination policies and programs. Similarly, but importantly, certain employers (at present) are still required to comply with employee demographic data reporting via the federal EEO-1 process (which large employers submit in the second quarter of each year) – this compliance obligations remains unaffected by the Executive Order.
Trump Executive Order Takes on DEI in the Workplace: Practical Considerations for Private Employers
Mintz | Jan 2025
The orders don’t specifically state what type of ramifications private-sector entities could face, but the attorney general must submit a report within 120 days with enforcement recommendations, including potential litigation or regulatory action. The language in the order suggests the directives apply broadly to the private sector, not just entities that contract with the federal government or receive federal funding.
Trump's Diversity Orders Rattle CEOs: What Companies Should Know About New DEI Rules
Forbes | Jan 2025
In addition to the executive orders issued by President Trump, on Tuesday, January 21, 2025, newly appointed EEOC Acting Chair Andrea R. Lucas issued a statement setting forth her enforcement priorities. In the statement, Lucas said that her enforcement priorities will include:
- Rooting out unlawful DEI-motivated race and sex discrimination;
- Protecting American workers from anti-American national origin discrimination;
- Defending the biological and binary reality of sex and related rights, including women’s rights to single‑sex spaces at work;
- Protecting workers from religious bias and harassment, including antisemitism; and
- Remedying other areas of recent under-enforcement.
President Trump Issues Sweeping Executive Orders Aimed at DEI
Proskauer | Jan 2025
Based on the Executive Order, the Trump administration intends to file, and intervene in, impact litigation against select private-sector targets. By targeting private employers, and seeking to extend the Supreme Court’s landmark ruling in Students for Fair Admissions v. Harvard, the Executive Order may also further embolden plaintiffs’ counsel and conservative advocacy groups to file similar impact litigation in the future and seek to put other pressure on companies to back away from DEI initiatives. As part of their planning, companies should assess their risk profile and carefully review their programmatic DEI initiatives and communications.
Trump Administration Issues Executive Order Targeting DEI in the Private Sector
Ropes & Gray | Jan 2025
Notably, nothing in the executive order suggests that employers may not take action to seek out a diverse candidate pool, so long as ultimate hiring decisions are based on qualifications alone and do not involve illegal preferences. Therefore, to lower the risk of enforcement action by the federal government, private sector employers (including nonprofit organizations) may choose to recruit across a broader spectrum and prioritize seeking out a wide range of diverse characteristics, rather than just focusing on protected characteristics like race or sex.
What Employers and Nonprofits Should Know About Trump’s Executive Order Banning Diversity Preferences
ArentFox Schiff | Jan 2025
Related Reading
Executive Orders Target DEI Programs and Gender Protections
Morgan Lewis | Jan 2025
President Trump's Agenda Starts By Eliminating Internal Federal DEI Programs
Seyfarth | Jan 2025
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