The DOJ and EEOC Move Forward with Enforcement of the President’s Executive Order 14173 (the “Anti-DEI Order”)
Published: March 24, 2025
Shortly after taking office, President Trump signed Executive Order 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”) commonly referred to as the “Anti-DEI Order” (hereinafter simply referred to as the “Ex. Order”). Among other things, the Ex. Order directs federal agencies “to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.” However, as pointed out by many legal commentators and at least one federal district court, the Ex. Order conspicuously does not define what constitutes an “illegal DEI preference or program.”
The Ex. Order directs the US Department of Justice (“DOJ”) to provide recommendations for combatting illegal DEI through enforcement of federal civil-rights laws and potential civil compliance investigations. Following the issuance of the Ex. Order, both the DOJ and the Equal Employment Opportunity Commission (“EEOC”) announced their respective intent to enforce the Ex. Order. At the end of January, 2025, the EEOC issued frequently asked questions (“FAQs”) stating that the Ex. Order is “restoring even-handed civil rights enforcement and directing the federal government, including the EEOC, to combat serious patterns of discrimination and harassment that have gone unchecked for too long.” At the same time, the acting EEOC chair also said that the she is confident that the work the EEOC does will remain important, and that the EEOC will necessarily play a critical role in the enforcement of the Ex. Order, including investigating employers for compliance with federal equal employment opportunity laws.
On February 5, 2025, the DOJ issued a memorandum that announced the agency will investigate, eliminate, and penalize illegal DEI preferences and policies in the private sector. The DOJ’s memo required its Civil Rights Division and its internal Office of Legal Policy to issue a joint report that contains, among other things, a plan with specific steps to deter the use of DEI programs that constitute illegal discrimination or preferences, as well as other strategies to end illegal DEI.
In furtherance of their stated intent to enforce the Ex. Order, on March 20, 2025, the DOJ and the EEOC issued a joint publication entitled “What to Do if You Experience Discrimination Related to DEI at Work.” A copy of the joint publication can be found at: (https://www.eeoc.gov/sites/default/files/2025-03/One_Pagers_2025-2_%28002%29_508.pdf). The publication reiterates that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on protected characteristics such as race and sex, and states that different treatment based on race, sex, or another protected characteristic can be unlawful discrimination, no matter which employees are harmed; and emphasizes that Title VII’s protections apply equally to all racial, ethnic, and national origin groups, as well as both sexes. The joint publication provides examples of what DEI-related discrimination could look like, and advises that a person can file a charge with the EEOC if they suspect they have experienced DEI-related discrimination.
Unfortunately, because the Ex. Order did not define what it meant by “illegal DEI” programs but merely claimed that “dangerous, demeaning, and immoral race and sex based preferences are being used under the guides of a so-called diversity, equity and inclusion (DEI) or diversity, equity, inclusion, and accessibility (DEIA) program,” there has been a lot of confusion and concern in private sector employment about continuing with DEI programs. There have also been a few cases filed to challenge the Ex. Order and one particular case out of the US District Court of Maryland initially issued a nationwide injunction to stop the enforcement of the Ex. Order. The District Court appropriately pointed out that there is a very real possibility of arbitrary and discriminatory enforcement of the Ex. Order because the Ex. Order fails to define what an “illegal DEI program” is. The Court said that the term “equity” itself is broad and without defining the term, it is unclear whether the Ex. Order extends the concept of “equity” beyond areas of anti-discrimination and civil rights laws. Unfortunately, however, the Fourth Circuit Court of Appeal stayed the enforcement of the District Court’s injunction on March 14, 2025. The Fourth Circuit Court found that because the scope of the Ex. Order is limited to activity that violates existing antidiscrimination laws, it does not violate the Constitution. It also pointed out that no enforcement action by the DOJ or EEOC has been challenged yet.
Regardless of the Fourth Circuit’s interpretation of the Ex. Order, as many legal commentators have pointed out – the terms “DEI” and “DEIA” are not self-defining and may be understood and defined differently in different contexts. Despite the reference to “illegal DEI” programs in the Ex. Order, many private employer’s DEI programs are more about cultural awareness, respect, celebration, and inclusion. However, given the joint publication by the DOJ and EEOC, even these types of programs may be subject to scrutiny by the federal government if an employee suspects they are being discriminated against because of them.
While the legality and scope of the Ex. Order will likely continue to be played out in the courts for some time, there are some proactive steps private employers can take in the meantime to try and ensure their DEI and other EEO policies and practices withstand scrutiny:
- Work with counsel and audit your EEO policies to confirm they comply with federal and state anti-discrimination laws.
- Work with counsel and audit any DEI programs to ensure that they also comply with federal and state anti-discrimination laws both in content and practice.
- Be sure there are no preferences or quotas being utilized when making employment decisions (e.g. hiring, firing, promotions, demotions, compensation, benefits, training, mentoring, and/or fellowship opportunities, etc.)
- Evaluate and ensure that all employment documents, including recruiting and hiring documents, are compliant with federal and state anti-discrimination laws.
- Be sure that any employee resource or affinity group is inclusive for all, not just a certain protected group.
- When conducting discrimination and harassment prevention training, or DEI training, do not segregate employees into groups based on protected classes, even if the groups receive the same training.
- Assess and ensure that training content is balanced and compliant with anti-discrimination and anti-harassment laws so as to avoid claims that the content is targeting a particular protected class and creating a hostile work environment.
- Have policies and procedures in place to ensure that employees are not retaliated against for raising good faith concerns about harassment or discrimination in the workplace, including raising concerns about, or opposing, DEI training when the employee provides a fact-specific basis for the concern or opposition.
- Provide training to supervisors and managers on the obligations of the employer, and the rights of applicants and employees, under federal and state EEO laws.
Ultimately, employers should take a measured approach and evaluate their programs, policies, and training related to DEI and EEO obligations. If such programs and policies comply with federal and state EEO laws, then despite all the press on this new era of federal enforcement against DEI, employers should take some comfort in knowing that they are meeting their legal obligations.