President Trump revokes federal DEI, DEIA, and affirmative action Executive Orders
UPDATE 2/12/2025: On February 5, 2025, the Office of Personnel Management (OPM) issued a memorandum that provides guidance on President Trump’s diversity, equity, and inclusion (DEI) Executive Orders (EOs) in the federal workplace, which may signal how the Trump Administration ultimately could define “illegal DEI.” Directed at heads and acting heads of departments and agencies, the OPM memorandum notes that “[u]nlawful discrimination related to DEI includes taking action motivated, in whole or in part, by protected characteristics. To be unlawful, a protected characteristic does not need to be the sole or exclusive reason for an agency’s action.” The memorandum addresses a number of practices, including diverse slate policies, employee resource groups, event attendance, and special emphasis programs.
UPDATE 2/6/2025: On February 5, 2025, Attorney General Pam Bondi issued various memoranda, including a memo stating 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 and in educational institutions that receive federal funds.” The memorandum also directs the Civil Rights Division and Office of Legal Policy to jointly submit a report with recommendations for enforcing civil rights laws and taking other appropriate measures to end illegal discrimination and preferences, including policies relating to DEI and DEIA, by March 1, 2025.
A separate memo addresses the elimination of internal discriminatory practices and targets “race- or sex-based preferences, diversity hiring targets, or preferential treatment based on DEI- or DEIA-related criteria” in materials. It directs departments to “pay particular attention to ending references to DEI or DEIA in (1) training and programs, including references to “unconscious bias,” “cultural sensitivity,” “inclusive leadership,” and any emphasis on race- or sex-based criteria rather than merit; (2) policies and guidelines, including hiring, promotion, or performance-evaluation policies; and (3) vendor contracts and budget materials.” The memorandum further notes that it is “intended to encompass programs, initiatives, or policies that discriminate, exclude, or divide individuals based on race or sex” and that “[i]t does not prohibit educational, cultural, or historical observances – such as Black History Month, International Holocaust Remembrance Day, or similar events – that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.”
UPDATE 2/4/2025: On February 3, 2025, plaintiffs National Association of Diversity Officers in Higher Education, American Association of University Professors, Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore filed a lawsuit in a Maryland federal district court on their own behalf, and on behalf of their members, challenging President Trump’s Executive Order (EO) 14151, “Ending Radical Government DEI Programs and Preferencing,” and EO 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” Plaintiffs seek a declaratory judgment that the EOs are unlawful and unconstitutional, and they request a preliminary and permanent injunction enjoining defendants other than the President from enforcing the EOs. Plaintiffs argue that EO 14173 is unconstitutionally vague in violation of the Fifth Amendment’s Due Process Clause, violates the Free Speech Clause of the First Amendment because it impermissibly restricts the exercise of plaintiffs’ constitutionally protected speech based on its content and viewpoint, and violates the separation of powers.
We will continue to monitor this litigation and other developments. In the meantime, please contact the authors or your DLA Piper contact and ask about our toolkit, Assessing risk under President Trump’s DEI Executive Order: A strategic roadmap for private employers and federal contractors.
On January 21, 2025, President Donald Trump issued an executive order (EO) titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which impacts the use of “dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called ‘diversity, equity, and inclusion’ (DEI) or ‘diversity, equity, inclusion, and accessibility’ (DEIA)” by the federal government, private companies, and other institutions. The EO states that DEI and DEIA policies “can violate the civil-rights laws of this Nation” and “undermine our national unity, as they deny, discredit, and undermine the traditional American values of hard work, excellence, and individual achievement in favor of an unlawful, corrosive, and pernicious identity-based spoils system.”
Specifically, the EO:
- Revokes multiple DEI, DEIA, and affirmative action executive orders and presidential memoranda
- Requires federal agencies to take certain steps to eliminate DEI, DEIA, and affirmative action activities and programs in the federal government. For example, on the heels of this EO, the Office of Personnel Management sent a memo to all agency and department heads closing agency DEIA offices. This includes sending agencywide notices to all employees asking about efforts to “disguise these programs,” informing all employees of DEIA offices they are hereby placed on administrative leave, and removing all outward-facing media of DEIA offices, and
- Broadly directs the Attorney General (“AG”) and all federal agencies “to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.”
The White House also published a “fact sheet” on the EO, stating the Trump Administration’s position that the EO will expand “individual opportunity by terminating radical DEI preferencing in Federal contracting and directing Federal agencies to relentlessly combat private sector discrimination.”
This represents a potential sea change in DEI practices for every organization (both federal contractors and private employers) across the United States that maintains DEI policies and practices. If DLA Piper can be a guide during this period of change, please contact us so that we can assist is assessing how this EO (and related regulatory guidance) specifically impacts your organization.
Implications and takeaways for federal contractors and private employers
The EO is wide ranging and far reaching, bringing with it both immediate impacts and uncertainty. With this in mind, below are potential key implications of the EO:
- Moving forward, federal contractors will be required to certify that they do not “operate any programs promoting DEI that violate any applicable federal anti-discrimination laws.”
- The EO does not impact federal anti-discrimination, anti-harassment, and anti-retaliation laws and protections. The EO states that the administration is committed to combatting discrimination in the workplace. Other EOs, such as the “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” may impact the scope of protections as interpreted and enforced by the Biden Administration.
- The EO only targets “illegal DEI” practices and policies in the federal government and private sector, which mandate the consideration of race, sex, gender identify, sexual preference, or religion in employment decisions in lieu of individual initiative, skills, performance, and hard work. The EO does not define the term “illegal DEI;” however, the EO directs the AG to study this issue and generate a report within 120 days, demonstrating, although not definitively, that the current administration views all DEI as “illegal DEI.” While awaiting further guidance, employers are recommended to consider the positions outlined in the EO when analyzing existing DEI efforts for risk compliance.
- The ultimate impact on current compliance of the EO on Office of Federal Contract Compliance Programs (OFCCP) audits is unclear. Federal contractors undergoing an OFCCP audit pertaining to an alleged affirmative action plan violation should be aware that those audits are being paused, as the Acting Secretary of Labor directed all Department of Labor workers — including the OFCCP — to cease work all pending cases, conciliation agreements, investigations, complaints and "any other enforcement-related or investigative activity." See DOL January 24, 2025 cease and desist order. The DOL further noted that it no longer has any authority under the rescinded EO 11246 or its regulations.
- We recommend federal contractors and employers consult with counsel to review any current DEI policies, practices, and procedures in place, as well as to review current federal data reporting and gathering practices in light of the EO.
- Federal contractors and employers are encouraged to review any DEI practices for compliance with reasonable diligence. Organizations’ public/outward-facing media (eg, social media, websites), both past and present, may heighten the risk of review by the administration.
- Federal contractors should be aware of potential whistleblower actions and the risk of funds potentially being withheld on a contract for any actions taken that are perceived to represent a potential violation of the EO.
Below we discuss the EO in more detail.
Revocation of Executive Order 11246 and other orders
The EO revokes EO 11246, “Equal Employment Opportunity,” which was initially issued by President Lyndon Johnson in 1965, and subsequently amended by President George W. Bush in 2002, and by President Barack Obama in 2014. EO 11246 prohibited federal contractors and subcontractors from discriminating in employment decisions on the basis of race, color, religion, gender identity, national origin, sex, and sexual orientation. It also required federal contractors to take affirmative action to ensure equal opportunity in all aspects of their employment and provided further detail on the nature of affirmative action, including the preparation of affirmative action plans.
The EO also revoked:
- EO 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations”
- EO 13583, “Establishing a Coordinated Government-wide Initiative to Promote Diversity and Inclusion in the Federal Workforce”
- EO 13672, “Further Amendments to Executive Order 11478 (Equal Employment Opportunity in the Federal Government) and Executive Order 11246,” and
- Presidential Memorandum of October 5, 2016, “Promoting Diversity and Inclusion in the National Security Workforce.”
Federal contractors may continue to comply with the prior regulatory scheme for up to 90 days from the January 21, 2025 date of the new order (until April 21, 2025). The EO does not apply to federal or private employment and contracting preferences for veterans of the US armed forces or those protected by the Randolph-Sheppard Act (which concerns the operation of vending facilities in Federal buildings by licensed blind persons).
Elimination of DEI in the government
The EO directs the head of each agency to include in every contract or grant award to a federal contractor:
- “A term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions for purposes of section 3729(b)(4) of title 31, United States Code.”
- “A term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.”
The EO also requires the Director of the Office of Management and Budget (OMB), with the assistance of the AG, as requested, to:
- Review and revise all government-wide processes, directives, and guidance
- “Excise references to DEI and DEIA principles” from federal acquisition, contracting, grants, and financial assistance procedures
- “Terminate all ‘diversity,’ ‘equity,’ ‘equitable decision-making,’ ‘equitable deployment of financial and technical assistance,’ ‘advancing equity,’ and like mandates, requirements, programs, or activities.”
Private DEI initiatives
The EO also targets illegal DEI, DEIA, and affirmative action activities, policies, and programs in the private sector. It directs the AG, “in consultation with the heads of relevant agencies and in coordination with the Director of OMB,” to submit a report within 120 days “containing recommendations for enforcing Federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.” The EO directs the report to contain:
- “The most egregious and discriminatory DEI practitioners in each sector of concern.”
- “A plan of specific steps or measures to deter DEI programs or principles…that constitute illegal discrimination or preferences.”
- “Other strategies to encourage the private sector to end illegal DEI discrimination and preferences and comply with all Federal civil-rights laws.”
- “Litigation that would be potentially appropriate for Federal lawsuits, intervention, or statements of interest.”
- “Potential regulatory action and sub-regulatory guidance.”
Significantly, the EO also requires each federal agency to “identify up to nine 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 endowments over 1 billion dollars.” The ramifications of civil compliance investigations could be sprawling.
Higher education
The EO also states that the AG and Secretary of Education shall jointly issue guidance within 120 days to ensure that all institutes of higher education that receive federal funds, grants, or federal student loan assistance under 20 USC 1070 et seq, comply with Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023). Therefore, the EO ensures additional guidance will be forthcoming regarding college admissions practices.
What’s next?
We expect further updates to come in short order as EO instructs the AG to provide further regulatory guidance within 120 days of the EO. Indeed, on January 23, 2025, the OFCCP issued a communication stating that it will immediately cease:
- “Promoting ‘diversity’”
- “Holding Federal contractors and subcontractors responsible for taking ‘affirmative action’” and
- “Allowing or encouraging Federal contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.”
Stay tuned.
For more information about the EO and its implications, please contact any of the authors or your DLA Piper relationship attorney. For more information on President Trump Executive Orders, see our Hub.