Employers with workplace diversity, equity, and inclusion (“DEI”) initiatives are paying close attention to the administration’s anti-DEI policy agenda and legal challenges to their enforcement. On Friday, the Fourth Circuit Court of Appeals stayed a temporary injunction on enforcement of two executive orders that impact DEI programs, (Executive Order 14151 of January 20, 2025, and Executive Order 14173 of January 21, 2025). The immediate impact can be seen in the EEOC’s action today in which Acting Chair Andrea Lucas sent a letter to 20 law firms requiring information about DEI-related employment practices.
Though the EEOC's letters neither invoke the EOs explicitly nor identify consequences for the recipients' failure to cooperate, this action shows that the administration is willing to take steps consistent with the EOs even while constitutional challenges are ongoing.
Our team has summarized the relevant Orders in previous updates. In brief, the provisions most relevant to private-sector employers include:
- Under a heading “Encouraging the Private Sector to End Illegal DEI Discrimination and Preferences,” Executive Order 14173 directs all federal agencies to develop a strategic enforcement plan, requiring each to identify sectors of concern, “egregious and discriminatory practitioners” of DEI, and an enforcement plan;
- The same executive order requires that federal contracts include a provision in which the federal contractor or grant recipient must certify that it “does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws,” and that this is a material term—invoking potential False Claims Act threats.
After the Fourth Circuit ruling, the executive branch may resume enforcing the orders, and the EEOC’s immediate response indicates enforcement may go forward swiftly.
Important points for employers to keep in mind:
- The court’s permission for enforcement to go forward is temporary and may change: Both the district court’s injunction and the appellate court’s stay are interim procedural rulings while the parties brief the merits of the case in the district court on an expedited briefing schedule. Future rulings could limit or block the orders in whole or in part, or not at all.
- Enforcement must be lawful: If the administration engages in unconstitutional enforcement of the orders, a court may issue another injunction and halt the orders again. Courts have already taken action to restrain the administration from actions held to be viewpoint discrimination in violation of the First Amendment; a D.C. court blocked an executive order that revoked law firm Perkins Coie attorneys’ government access, citing both DEI and documents prepared during Perkins Coie’s representation of Hillary Clinton’s 2016 campaign. Considering the EEOC’s March 17 demands to 20 law firms for information on their DEI hiring practices, more litigation on these executive orders is likely.
- Employers Should Not Wait to Perform Risk-based Analysis Before Making Government Contractor Certifications: Even if temporarily, that federal contracts will include DEI-related certification provisions means that employers should make it a priority to engage in appropriate due diligence to vet their employment practices for compliance with equal opportunity laws. This should be done before making any certifications, due to the potential risk under the False Claims Act,
- Discrimination Standard Unchanged: The executive orders draw much attention to the prospect that DEI programs may violate existing discrimination laws, but they do not alter existing laws on workplace discrimination under Title VII and other federal statutes. Whether a DEI program is lawful does not turn on whether these executive orders are constitutional. The Supreme Court is expected to clarify the evidentiary standard for reverse discrimination cases in June. Even if it becomes easier for historically advantaged groups to bring discrimination claims, however, it bears repeating that discrimination against disadvantaged groups remains illegal. Employers’ obligation remains to ensure equal opportunity in the workplace.
Read More Detail on the Court’s Decision Here:
In National Association of Diversity Officers in Higher Education, et al. v. Trump, No. 1:25-cv-00333-ABA (D. Md. Feb. 21, 2025), the U.S. District Court for the District of Maryland addressed challenges to Executive Orders 14151 and 14173. The plaintiffs, including civil rights organizations and educational institutions, argued that these executive orders were unconstitutionally vague and infringed upon First Amendment free speech rights by discriminating against certain viewpoints. The district court issued a preliminary injunction, accompanied by a 60-page opinion, enjoining significant aspects of the executive orders. The court found that—although the administration had not sought to enforce the orders against the plaintiffs—the provisions of the executive orders were unconstitutionally vague and potentially infringed on First Amendment rights by discriminating against certain viewpoints.
The government subsequently appealed this decision, and in its March 14 order, the Fourth Circuit disagreed with the district court. Staying the injunction, the three-judge panel held that the blocked provisions are likely enough to be constitutional to permit enforcement while litigation continues. The appellate court’s order was summary in nature and, without extensive analysis, stated that the government had met its burden of proof. Each judge wrote a brief concurring opinion, suggesting a concern about judicial overreach— distancing themselves from the executive orders' anti-DEI rhetoric and emphasizing that the courts have limited authority to override public policy. For example, Chief Judge Diaz’s concurrence states (citations and internal quotations omitted): "[A]ll Americans should be able to freely consider how to continue empowering historically disadvantaged groups, while not reducing the individuals within those groups to an assigned racial or sex-based identity."
PLG’s executive orders task force continues to monitor and provide updates on recent executive orders and enforcement actions.
