In January 2025, President Donald J. Trump signed several Executive Orders immediately after being sworn into office. Executive Order 14151 “Ending Radical and Wasteful Government DEI Program and Preferencing” and Executive Order 14173 “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” both of which are focused on the termination of diversity, equity, and inclusion programs and policies, have resulted in federal cases challenging the authority of the President to execute such orders, the vagueness of the orders, violation of free speech, and violation of separation of powers.
In the case of National Association of Diversity Officers in Higher Education, American Association of University Professors, Restaurant Opportunities of Centers United, Mayor and City Council of Baltimore, Maryland v. Donald J. Trump, et al. (1:25-cv-00333), filed on February 3, 2025, in the U.S. District Court of Maryland, the plaintiffs sought an injunction to stop enforcement of Executive Orders 14151 and 14173. On February 21, 2025, the Court partially granted the temporary injunction; however, the Order did not prevent the Attorney General from preparing a report regarding recommendations for enforcement and measures to encourage the private sector to end “illegal discrimination and preferences, including DEI” or block the Attorney General from engaging in investigations under Executive Order 14173. The Trump administration appealed the ruling and on March 14, 2025, the United Stated Court of Appeals for the Fourth Circuit issued an Order staying the preliminary injunction, thus allowing the two Executive Orders focused on elimination of DEI to be enforced.
Days after that ruling, on March 19, 2025, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) issued two technical assistance documents related to DEI intended to educate the public about unlawful discrimination related to diversity, equity, and inclusion in workplace policies, procedures, programs, and practices. The documents are titled “What To Do If You Experience Discrimination Related to DEI at Work” and “What You Should Know About DEI-Related Discrimination at Work.” Although DEI is not a defined term under Title VII, in issuing this guidance, the DOJ and EEOC reiterated their viewpoint that regardless of an employer’s motive in furthering diversity, equity, and inclusion, discrimination, particularly based on race or sex, will not be tolerated. Further, the agencies warned of “serious implications for some very popular types of DEI programs.”
While the technical assistance documents prohibit the use of Employee Resource Groups or affinity groups, they must be open to all employees. Both technical assistance documents describe DEI initiatives, policies, programs, or practices that are considered unlawful under Title VII. For example, the EEOC suggests that DEI training may give rise to colorable claims of a hostile work environment, and opposing participation in such training may constitute a protected activity. Likewise, certain workplace groups like Employee Resource Groups or affinity groups that limit membership to certain protected classes are an example of prohibited conduct because they separate workers into groups based on a protected characteristic. These groups are considered discriminatory regardless of whether the separate groups receive the same program content or resources.
The EEOC’s Strategic Enforcement Plan Fiscal Years 2024–2028 includes the objective of “promoting promising practices to help prevent discrimination in the workplace,” which the EEOC intends to accomplish through “support of employer efforts to implement lawful and appropriate diversity, equity, inclusion and accessibility (DEIA) practices that proactively identify and address barriers to equal employment opportunity, help employers cultivate a diverse pool of qualified workers, and foster inclusive workplaces.” How this will be accomplished considering the technical documents concerning DEI in the workplace remains in question. However, what we do know is while Executive Orders cannot change statutory law or Supreme Court decisions, pursuant to the Executive Orders addressing DEI, the DOJ and the EEOC are prioritizing scrutiny of private and public sector DEI programs. Attempts to enforce compliance with the Executive Orders addressing DEI will continue. This means that even if employers open membership in Employee Resource Groups and affinity groups to all employees, it may still invoke scrutiny under the new administration as to whether the groups single out certain protected classes leading to questions about discrimination in the workplace. In other words, even if done correctly, the mere presence of certain groups could trigger unwanted attention by the EEOC. As such, private employers should be vigilant in reviewing the use and application of such programs.
