President Donald Trump issued several Executive Orders in his first week in office involving diversity, equity, and inclusion (DEI) initiatives in the federal government. Though these Executive Orders are mostly focused on federal government DEI programs, they also impact private employers, especially contractors or subcontractors of the federal government.
President Trump’s Executive Orders aim to dismantle nearly all forms of DEI initiatives, including preferences, mandates, policies, activities, and programs. The orders describe DEI programs as an “unlawful, corrosive, and pernicious identity-based spoils system” that “threaten[s] the safety of the American” people. To address these concerns, the orders seek to eliminate DEI efforts within federal agencies, among federal contractors, and even in the private sector.
The most noteworthy Executive Orders affecting DEI programs include:
- Executive Order 14173 “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (January 21, 2025). Rescinds several Executive Orders, including Executive Order 11246, which was signed by President Lyndon B. Johnson in 1965 to prohibit discrimination by federal contractors and mandated federal contractors to take affirmative action in hiring practices to provide equal employment opportunities. President Trump’s Executive Order mandates the Office of Federal Contract Compliance Programs (OFCCP) to stop requiring federal contractors to take affirmative actions. It also requires the OFCCP to stop “promoting ‘diversity’” and “allowing or encouraging federal contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.” In addition, the Executive Order seeks to encourage private-sector companies that are not federal government contractors to end or limit certain DEI programs by directing the Attorney General to create a report on private-sector DEI programs and identify civil compliance investigations, litigation, and potential regulatory action when deemed appropriate.
- Executive Order 14148 “Initial Rescissions of Harmful Executive Orders and Actions” (January 20, 2025). Revokes several of President Biden’s Executive Orders, many of which focused on furthering diversity and inclusion. One of the revoked Executive Orders is Executive Order 13985 (“Advancing Racial Equity and Support for Underserved Communities Through the Federal Government”), which called on federal agencies to take affirmative steps to address barriers to equitable opportunities within government contracting.
- Executive Order 14170 “Reforming the Federal Hiring Process and Restoring Merit to the Government Services” (January 20, 2025). Establishes a 120-day deadline for the assistant to the President for domestic policy to develop a federal hiring plan for agency heads that will prioritize merit-based recruitment and prevent the hiring of individuals based on their race, sex, or religion.
- Executive Order 14168 “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” (January 20, 2025). Mandates that federal agencies and employees use a particular definition of sex. Each agency must use the definition in the Executive Order when “interpreting or applying statutes, regulations, or guidance and in all other official agency business, documents, and communications.” Agencies are also required to remove messaging that promotes “gender ideology.” The Executive Order also calls on the Attorney General to issue guidance that corrects what President Trump deems is a "misapplication" of Bostock v. Clayton County, a Supreme Court decision that held that Title VII, which prohibits discrimination based on sex, also prohibits discrimination based on sexual orientation and transgender status.
- Memorandum “Keeping Americans Safe in Aviation” (January 21, 2025). Terminates all DEI initiatives, including preferencing policies or practices, in the Federal Aviation Administration.
“Ending Illegal Discrimination and Restoring Merit-Based Opportunity” appears likely to have the most immediate and direct impact on private-sector employers. The Executive Order directs federal agencies to include a provision in every contract requiring the contracting parties to certify that they do not operate any programs promoting DEI that violate any applicable federal antidiscrimination laws. Further, the Executive Order states that within 120 days of the order, the Administration should identify, for potential civil compliance investigations, “the most egregious and discriminatory DEI practitioners in each sector of concern,” which will include publicly traded corporations, large nonprofits, foundations with more than $500 million in assets, state and local bar and medical associations, and higher-education institutions with an endowment of more than $1 billion.
Given the breadth of scope and sheer number of recent Executive Orders involving DEI programs, as well as the fact that many of these orders will (or have already been) challenged in court, their overall effect on private-sector employers is difficult to forecast. One thing, however, is clear: Employers should not pause or discontinue policies and practices aimed at preventing discrimination in the workplace. Employers must bear in mind that the recent Executive Orders do not (and without action from Congress, cannot) dismantle existing federal antidiscrimination laws, including Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin.
Moreover, despite the rescission of Executive Order 11246, federal contractors and subcontractors are still required to continue to comply with Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), which prohibit employment discrimination against people with disabilities and certain groups of protected veterans by federal contractors and require federal contractors to take affirmative action in the employment of individuals with disabilities and certain protected veterans. Additionally, state and local antidiscrimination laws remain in place.
Key Takeaways and Considerations for Employers
- Employers should take an inventory of their antidiscrimination policies and practices, as well as existing policies or initiatives that could be labeled as DEI. This includes policies that are likely to draw scrutiny, such as policies explicitly labeled “DEI” and other policies that, while not labeled as DEI, promote diversity in the workplace. Employers should then identify and assess the risks and benefits of these policies and initiatives with an eye to determining which should remain in place; which may need to be adjusted, reconfigured, or renamed; and which should be jettisoned.
- Federal contractors and subcontractors should pay particular attention to whether their efforts to comply with now-rescinded Executive Order 11246 potentially include various initiatives that might be labeled as DEI and should be discontinued or modified. They should also bear in mind that their obligations under Section 503 and VEVRAA remain in effect, including the obligation to maintain annual affirmative action programs relating to individuals with disabilities and protected veterans. Contractors should also seek legal counsel to determine how their DEI policies and practices may affect their existing and future federal contracts.
- Employers should be mindful of their obligations under state and federal antidiscrimination laws, which remain in effect regardless of President Trump’s Executive Orders.
- Employers should stay up to date on the Trump Administration’s initiatives regarding DEI because there will certainly be additional developments as these Executive Orders are implemented and as the Administration takes additional steps to implement its anti-DEI agenda.
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