DEI Legal Developments

As summarized in detail here, President Trump’s recent executive order entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “Order”) takes aim at non-compliant Diversity, Equity and Inclusion (“DEI”) programs in both the public and private sectors.  With the prospect of “civil compliance investigations” and other actions, the Order is a warning to private employers that have allegedly “adopted and actively use[d] 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) that can violate the civil-rights laws of this Nation.” Many private employers have struggled with how to respond to the Order, particularly given the Order’s vagueness and contradictory state and local laws.  One of the questions that has emerged is how the Order impacts employers’ commercial free speech rights given the U.S. Supreme Court’s view that such rights are critical to the “uninhibited marketplace of ideas[.]” 

On March 19, 2025, the U.S. Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Justice (“DOJ”) released joint “technical assistance documents” (i.e., non-binding interpretive guidelines for enforcement agents) which identify specific diversity, equity, and inclusion (“DEI”) practices that those agencies may consider “illegal” and “discriminatory.” 

In the latest episode of the Mintz on Air: Practical Policies podcast, Member Jen Rubin is joined by Associate Evan Piercey to discuss the divide between state and federal DEI initiatives.

President Trump’s executive orders aimed at Diversity, Equity and Inclusion (DEI) programs and policies, including the executive order titled “Ending Illegal Discrimination and Restoring Merit Based Opportunity” (Executive Order 14173), are impacting the way publicly traded companies approach their DEI-related disclosures.  Although enforcement of the executive orders was recently temporarily halted (as we wrote about here), as calendar year end public companies begin to file their Form 10-K Annual Reports for the fiscal year ended December 31, 2024, we have seen, and expect to continue to see, a shift in new DEI disclosures as compared to prior years.  Companies are paying consideration to whether they want to include such disclosures, how comprehensive such disclosures should be, and what language should be employed to strike an appropriate balance.  

This webinar provides strategies to in-house counsel to not only stay informed of the shifting landscape but to also effectively prioritize their resources to address these challenges.

A federal district court in Maryland has temporarily enjoined enforcement of several key aspects of two recent DEI-related executive orders from the Trump Administration – Executive Order 14151 (Ending Radical and Wasteful Government DEI Programs and Preferencing) and Executive Order 14173 (Ending Illegal Discrimination and Restoring Merit-Based Opportunity, discussed further here) (together, the “Executive Orders”). In this post, we briefly summarize the court’s decision and outline the implications for employers. 

As we previously summarized, President Trump recently issued a number of wide-ranging executive orders intended to transform the social and regulatory landscape, including in the workplace.  One of the most comprehensive of these executive orders is entitled: Defending Women From Gender Ideology Extremism And Restoring Biological Truth To The Federal Government (the “Order”).  The Order takes aim at what it terms “gender ideology,” makes clear that the federal government will recognize only male and female biological sexes (not gender or gender identity), and directs the federal government to “enforce all sex-protective laws to promote this reality” by creating and implementing the Order’s strict definitions.  While the Order is overtly targeted at erasing policies, practices, and procedures that acknowledge or support gender identity or transgender individuals across the federal government, its reach goes beyond the public sector and has broad implications for private employers as well.   

Section 3 of President Trump’s Executive Order entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” addresses the federal contracting process and revokes Executive Order, EO 11246, a long-standing order that imposed affirmative action requirements on federal contractors and recipients of federal grants. This post covers the impact of EO 11246’s revocation.

On January 23, 2025, a coalition of Attorneys General from ten states, led by AG Ken Paxton of Texas, penned a letter to six major U.S. financial institutions, warning that their embrace of “race-and-sex-based quotas” and investment decisions made “in the furtherance of political agendas” might run violate of federal and state laws. AG Paxton invited these firms to answer a series of questions regarding their policies, but nevertheless reserved the right to take “enforcement actions to vindicate federal or State laws.” This letter comes on the heels of President Trump’s recent executive orders including one entitled, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”, which we wrote about previously here. What does the letter say, and what, if anything, should other companies do in response? We explore these questions and offer some guidance about them below.

In the wake of President Trump’s “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” Executive Order (the “Executive Order”) (discussed further here), many companies are in the process of revisiting their existing diversity, equity, and inclusion (“DEI”) programs and initiatives to reconfirm their legal viability. Close examination of the Executive Order reveals that the Administration hopes to rely on the False Claims Act (“FCA”) as another statutory weapon aimed at eliminating what it perceives as a scourge of “illegal,” “demean[ing],” and “immoral” DEI programs. The False Claims Act, 31 U.S.C. §3729, is a whistleblower statute intended to prevent companies from defrauding the government. Its inclusion in the Executive Order opens federal contractors and federal grant recipients to the possibility of substantial criminal and/or civil liability where they operate DEI programs deemed to violate the law. We discuss the FCA and its impact under the Executive Order more below.

In a flurry activity, President Trump dismissed the General Counsel for the Equal Employment Opportunity Commission (EEOC), the General Counsel for the National Labor Relations Board (NLRB), and the initial acting General Counsel of the NLRB who temporarily filled in the General Counsel role.  President Trump also removed a Biden-appointed NLRB Board member and two Biden-appointed EEOC Commissioners.  These actions are likely to disrupt operations at these agencies, including with respect to any ongoing formal matters and in the dissemination of general guidance and oversight they provide. 

President Trump has issued a flurry of wide-ranging executive orders intended to shake up the employment landscape.  One of those orders, entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “Executive Order”), takes aim at non-compliant DEI programs and policies.  It also creates a momentous change in the federal contractor landscape by revoking Executive Order 11246, which has, for the past sixty years, served as the foundation for non-discrimination and affirmative action requirements in the federal contracting space.  Although the Executive Order’s mandates are vague in many places and raise more questions than they answer, at bottom, the Executive Order appears designed to attempt to effectively stamp out DEI programs and policies in the federal workforce, while putting private sector employers on notice and pushing them to proactively modify, narrow or even end their DEI initiatives.  But as we’ll discuss more below, these developments do not compel private employers to rescind their DEI programs and policies entirely; instead, employers should use the Executive Order as an opportunity to review their existing programs and policies to ensure that they (i) continue to align with their mission and organizational goals, (ii) are legally compliant in light of the change in administration, and (iii) whether subsequently modified or not, thereafter are effectively communicated to stakeholders. 

ESG Co-chair Jen Rubin hosts a thoughtful discussion on diversity diversions and the future of DEI programs under the new administration.

In the latest episode of the Mintz on Air: Predictions and Practical Policies Podcast, ESG Co-chair Jen Rubin hosts a timely discussion on Title VII of the Civil Rights Act, Executive Order 11246, and how employers can prepare for the next administration.

ESG Co-chair Jen Rubin moderates a forward-looking discussion on what businesses can expect for ESG, clean tech, and energy regulation under the second Trump administration.

On the heels of the election of President-Elect Trump, employers should be on the lookout for potential changes to employment and immigration laws, regulations and practices.

In their webinar, “DEI & Affirmative Action – A Challenge with Consequences,” Member and ESG Co-chair Jen Rubin and Associate Nikki Rivers offered practical solutions for navigating these rulings, which are specifically geared toward in-house counsel and HR professionals.