President Trump Executes Four Executive Orders Anticipated to Drastically Impact Private Sector DEI/DEIA Programs

By Anastasia M. McCarthy, Esq.


During his first few days in office, President Trump executed four executive orders aimed at halting allegedly unlawful and discriminatory DEI/DEIA programs, policies, mandates, preferences, activities, guidance, regulations, enforcement actions, consent orders and requirements both inside and outside of the federal government. Arguably, the most significant Executive Order for private sector employers to understand is the January 20, 2025 Order entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” although a total of four DEI/DEIA related Executive Orders have been executed to date.

 

What is an Executive Order?

Before breaking the Order down, it is important to understand what an Executive Order actually is and is not. An Executive Order is a presidential directive about how the federal government must operate. Although it is an Order with the force of law (similar to regulations issued by federal agencies), it is not a piece of legislation. Nevertheless, Executive Orders are powerful tools for Presidential Administrations—they can only be overturned by the President (or future Presidents) and do not require congressional approval. Congress can, however, encumber an administration’s ability to carry out an Executive Order through its funding decisions.

 

What Do President Trump’s DEI-Related Executive Orders Do?

President Trump has executed at least four Executive Orders touching on DEI/DEIA in the last 10 days. Most relevant for private sector employers is the January 20, 2025 Executive Order, entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which actually does a number of things.

  1. It declares “It is the policy of the United States to protect the civil rights of all Americans and to promote individual initiative, excellence and hard work. I therefore order all executive departments and agencies to terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements. I further order all agencies to enforce our longstanding civil-rights laws and to combat illegal private sector DEI preferences, mandates, policies, programs, and activities.”
  2. It rescinds a number of Obama and Biden-era directives (as well as one 1965 Order from the Johnson administration) intended to implement DEI/DEIA and equal opportunity practices in the federal workforce and for federal contractors and subcontractors.
  3. Directs the head of each federal agency to include in all contracts and grant awards: a contract term requiring the grantee/recipient to comply, in all respects, to federal anti-discrimination laws (payment is contingent on compliance) and a contract term requiring the recipient/awardee to certify that it does not operate any programs “promoting DEI that violate any applicable anti-discrimination laws.”
  4. Orders the Director of the Office of Management and Budget, with the assistance of the Attorney General, to review and revise all Government processes, directives and guidance; excise references to DEI and DEIA “principles, under whatever name they may appear” from Federal acquisition, contracting, grants, and financial assistance procedures; and terminate all “diversity,” “equity,” “equitable decision-making,” “equitable deployment of financial and technical assistance,” “advancing equity” and like mandates, requirements, programs or activities.

Most relevant for private sector employers, this Order:

  1. Directs the heads of all agencies, with the help of the Attorney General, to “encourage” the private sector to end “illegal DEI Discrimination and Preferences” by submitting a report to the Administration with recommendations for enforcing Federal civil rights laws. Specifically, the Administration asks agency heads to propose a “strategic enforcement plan” identifying:
  • “key sectors of concern,”
  • “the most egregious and discriminatory DEI practitioners in each sector of concern,”
  • a plan to “deter DEI programs or principles.”
  • The proposed plans should also “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;
  • include other proposed strategies to encourage the private sector to end DEI practices;
  • recommend litigation that would be appropriate for Federal lawsuits or intervention; and
  • potential regulatory or sub regulatory guidance.

Specifically exempt from this Order are Federal and private sector employment and contracting preference for veterans of the U.S. military as well as people protected by the Randolph-Sheppard Act (providing a preference to visually impaired people who with to open vending facilities on Federal properties).

In addition to the foregoing Order, President Trump also signed three other DEI-related Executive Orders including—"Initial Recission of Harmful Executive Orders and Actions,” “Ending Radical and Wasteful Government DEI Programs and Preferencing,” and “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”

“Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” is also anticipated to impact private sector employers. Put simply, the Order defines “sex” as “an individual’s immutable biological classification as either male or female” and requires agencies to “enforce laws governing sex=based rights, protections, opportunities, and accommodations to protect men and women as biologically distinct sexes.” Employers can expect new guidance from the Attorney General and EEOC on how the Supreme Court’s Bostock v. Clayton County decision (in which the Supreme Court held that protections against sex-based discrimination include discrimination on the basis of sexual orientation and gender identity) should be applied in the workplace and should anticipate federal enforcement actions against Employers who fail to provide single-sex spaces such as restrooms or locker rooms or who take disciplinary action against employees who express “the binary nature of sex.” 

Employers should review their policies, practices, and programs to ensure compliance with federal civil rights laws. For assistance, please contact Hurwitz & Fine's Labor & Employment Team.

 

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