Managing in the New Administration: March 2025 DEI Developments
Since our February 27, 2025 webinar, available here there have been some major developments related to enforcement of President Trump’s Executive Orders on Diversity, Equity, and Inclusion (“DEI”).
1. Injunction on Key DEI Orders Is Lifted.
On March 13, 2025, the Fourth Circuit lifted the nationwide preliminary injunction that blocked federal agencies from carrying out key provisions of EO 14151: Ending Radical and Wasteful Government DEI Programs and Preferencing and EO 14173: Ending Illegal Discrimination and Restoring Merit-Based Opportunity.
The panel of three judges found that the government had demonstrated a sufficient likelihood of success on the merits, based largely on the government’s representation that the DEI EOs, on their face, only apply to conduct which violates existing federal antidiscrimination law. The panel left open the potential that enforcement efforts exceeding this narrow scope will violate First Amendment and due process concerns.
As a result, the following EO provisions are restored:
- Termination Provision (EO 14151 § 2(b)(i)): ordering each agency, department, or commission head to terminate, to the maximum extent allowed by law, all “equity-related” grants or contracts.
- Certification Provision (EO 14173 § 3(b)(iv)): ordering each agency to include certifications in every contract or grant award that the contractor or grantee does not operate illegal DEI programs and that compliance with federal anti-discrimination laws is “material to the government’s payment decisions for purposes of” the FCA.
- Enforcement Threat Provision (EO 14173 § 4(b)(iii)): ordering the Attorney General to submit recommendations and a strategic plan for enforcement actions to challenge illegal DEI in the private sector.
Note: Several federal district courts outside of the Fourth have yet to rule on lawsuits similarly challenging the DEI EOs, creating a pathway for conflicting circuit court decisions, and the need for the Supreme Court to weigh in at some point.
2. EEOC and DOJ Issue Enforcement.
On March 19, 2025, the EEOC and DOJ issued guidance and two technical assistance documents addressing unlawful discrimination related to DEI in the workplace: What To Do If You Experience Discrimination Related to DEI at Work | U.S. Equal Employment Opportunity Commission and What You Should Know About DEI-Related Discrimination at Work | U.S. Equal Employment Opportunity Commission,
Key Takeaways
Under Title VII, DEI initiatives, policies, programs, or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic. When analyzing corporate DEI programs or practices, employers should determine whether they confer preferences based on protected class resulting in some tangible benefit. If so, they should be removed or modified for compliance.
Finally, we have a recent example of a DEI program – the City of Seattle’s anti-discrimination training – which was recently found not to violate Title VII by the U.S. District Court for the Western District of Washington in Diemert v. City of Seattle. The Court rejected the theory that DEI and anti-discrimination trainings are per se unlawful and determined there was a lack of evidence of how the trainings in question harassed the plaintiff personally on account of his race.
