Upon taking office, President Trump promptly issued several Executive Orders (EOs) targeting Diversity, Equity, and Inclusion (DEI) programs and related principles. These directly affect federal agencies and contractors, but the messaging also pressures private employers to re-evaluate their DEI efforts.
In particular, Section 4 of EO 14173 (often called the “Enforcement Threat Provision”) directs all agency heads, with the assistance of the Attorney General, to “take all appropriate action with respect to the operations of their agencies to advance in the private sector [the EO’s anti-DEI policy].” Section 4 goes on to direct the AG to work with the Office of Management and Budget (OMB) and agency heads to prepare a report of “recommendations for enforcing [f]ederal civil rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including ‘DEI’ as well as a proposed strategic enforcement plan addressing, among other things, potential civil compliance investigations of certain large employers, a plan of specific steps or measures to deter DEI programs or principles (whether specifically denominated ‘DEI’ or otherwise) that constitute illegal discrimination or preferences” and “other strategies to encourage the private sector to end illegal DEI discrimination and preferences and comply with all [f]ederal civil rights laws.”
On February 21, 2025, a federal court in Maryland issued a nationwide preliminary injunction preventing enforcement of several aspects of President Trump’s EOs, including the “Enforcement Threat Provision” referenced above. The injunction does not prevent the AG from preparing the report or from engaging in investigations called for by the EO, but enforcement is otherwise prohibited by the court order nationwide for now. A court filing on Thursday, however, alleges that agencies may be moving forward under the EO despite the court order. Other legal challenges remain pending.
Bottom line
Practically speaking, regardless of technical legal status, the current administration and its enforcement agencies will not look favorably upon DEI-related initiatives and language that favor certain groups to the exclusion of others. Employers should consider reaching out to employment law counsel to assist with a review, updates, and/or implementation of these kinds of initiatives.
