Our prior Legal Alert regarding President Trump’s January 21, 2025 Executive Order entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (“January 21, 2025 Executive Order”) focused on its rescission of a longstanding order from 1965, Executive Order 11246, which applied to federal government contractors. President Trump’s January 21, 2025 Executive Order also impacts private employers.
How the January 21, 2025 Executive Order Addresses the Private Sector
Section 4 of the January 21, 2025 Executive Order focuses on private sector diversity, equity, and inclusion (“DEI”) programs and initiatives. Specifically, Section 4’s stated purpose is to encourage ending “illegal DEI discrimination and preferences.” Here, Section 4 outlines a preview of potential future enforcement actions against private entities.
The January 21, 2025 Executive Order directs the Attorney General to submit a report within 120 days containing a “strategic enforcement plan” with recommendations encouraging the private sector “to end illegal discrimination and preferences, including DEI.” The report also will include key sectors of concern, as well as “the most egregious and discriminatory DEI practitioners in each sector of concern.”
Additionally, each agency also is required to identify up to 9 potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, state, and local bar and medical associations, and institutions of higher education with endowment over 1 billion dollars.
The Attorney General’s report will identify matters that “would be potentially appropriate for federal lawsuits.”
What is Next for the Private Sector
All DEI programs are not illegal. At this time, private sector employers should review and understand the purpose of their current DEI programs and initiatives and how they are implemented. Once the Attorney General submits her report, which is expected on or before May 20, 2025, we will know more about this administration’s enforcement plan.
