The first weeks of the second Trump administration have been marked by a flurry of executive orders, several of which are targeted toward fulfilling President Donald Trump’s campaign pledge to eliminate Diversity, Equity, and Inclusion (DEI) initiatives across the federal government, educational institutions, and within the private sector. Though the primary impact of these orders is reserved for the federal government, they also contain certain provisions that are intended to encourage changes throughout the private sector, presumably, in advance of any such directive.
The following is an analysis of the latest DEI-related executive orders and how they apply, as well as best practices for employers to adapt to the Trump administration’s policy changes, both in the public and private sectors.
First Things First: What Is an Executive Order?
Although executive orders carry the force of law, they are not legislation that has been passed by an act of Congress. Rather, they are published directives by the president of the United States.
No president can use an executive order to overturn existing legislation. And, just as executive orders can be issued unilaterally by a president, so too can they be unilaterally rescinded by a subsequent president. Therefore, it is likely that a president would prefer to pass his or her agenda through congressional legislation, which is more difficult to overturn. But, doing so may be difficult in an era of hyper-partisanship. Executive orders also can be appealing for presidents to implement as much of their agenda as they can (or appear as though they are doing so) while the more time-consuming legislative process takes form. The takeaway, however, is that executive orders should be afforded the same weight as if it they had been enacted by Congress.
How Do the Executive Orders Address DEI?
There are several DEI-related executive orders that President Trump has signed in the first weeks of his new administration, including the following:
“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”: Rescinding Existing Executive Orders Relating to DEI, Requiring Federal Agencies to Eliminate DEI Programs, and Encouraging the Private Sector to End DEI Programs
This executive order directs all federal executive departments and agencies to terminate their DEI initiatives. In furtherance of that objective, the executive order revokes a number of prior executive actions — most notably including the Lyndon Johnson-era Executive Order 11246 as amended, which among other things banned government contractors and subcontractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. With the revocation of that executive order, contractors and subcontractors will be required to cease all DEI-related activities and self-initiated affirmative action plans, effective April 22, 2025. At that time, they will be required to certify that they do not or no longer operate DEI programs “that violate any applicable Federal anti-discrimination laws.”
Notably, the executive order does not explicitly direct private employers to undertake any actions, for instance, to curb or eliminate their own DEI programs. Even so, it characterizes DEI and DEIA (diversity equity, inclusion, and accessibility) programs as “illegal,” and identifies “major corporations, financial institutions, the medical industry, large commercial airlines, law enforcement agencies, and institutions of higher education” as entities and industries that have wrongly implemented such programs. To that end, it directed the attorney general to submit a report “containing recommendations for enforcing Federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination preferences, including DEI.” Among other things, the report must “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.” Thus, the verbiage of the executive order is a tell-tale roadmap to pending initiatives of the Trump administration toward the elimination of DEI programs in the private sector.
Notwithstanding the above, the executive order’s scope does not extend to cover the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) or Section 503 of the Rehabilitation Act of 1973, which protect against employment discrimination against certain veterans and qualified disabled individuals, respectively. Additionally, the executive order explicitly states that it does not apply to “lawful Federal or private-sector employment and contracting preferences for veterans of the U.S. armed forces or persons protected by the Randolph-Sheppard Act,” relating to employment opportunities for the blind, as vendors in federal buildings.
“Ending Radical and Wasteful Government DEI Programs and Preferencing”: Terminating DEI Initiatives Across the Federal Government, and Targeting Contractors and Grantees Who Maintain Such Initiatives
This executive order directs the director of the Office of Management and Budget (OMB), assisted by the attorney general and the director of the Office of Personnel Management (OPM), to terminate all DEI and DEIA “mandates, policies, programs, preferences, and activities in the federal government, under whatever name they appear.” The order therefore targets not only explicit written DEI/DEIA programs, but those programs that would have the effect of promoting or implementing DEI/DEIA under a more benign heading.
In addition to affecting the federal government, the executive order also requires that agencies, departments, or commission heads terminate all “equity” plans, actions, initiatives, or programs, as well as “equity-related grants or contracts” and DEI/DEIA performance requirements not just for employees, but also for contractors and grantees. To that end, agencies, departments, and commission heads were directed to send a list of: (i) all federal contractors who have provided DEI training or training materials to agency or department employees and (ii) all federal grantees who received funding related to DEI/DEIA or “environmental justice” programs (which is not defined in the order), dating back to the beginning of the Biden administration. The order is scheduled to take effect on March 21, 2025. Plainly, this language directly affects which entities the federal government will be permitted to award federal contracts, dependent upon whether that contractor has a DEI program that is deemed violative of the law by the Trump administration.
“Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”: Recognizing Two Sexes, Which Cannot be Changed Through Self-Identification
This executive order defines “sex” as “an individual’s immutable biological classification as either male or female.” Excluded from the definition is the “concept of ‘gender identity’”; in other words, the executive order denies that gender identity can be “self-assessed,” and decries the “false claim that males can identify as and thus become women and vice versa.”
The executive order directs the secretary of Health and Human Services to provide further guidance expanding on these definitions by February 19, 2025. Federal agencies are also directed to give the terms “sex,” “male,” “female,” “men,” “women,” “boys,” and “girls” the meaning set forth in this executive order when interpreting or applying statutes, regulations, or guidance or other agency business. However, because, as noted above, executive orders do not have the authority to overturn existing legislation, to the extent that these terms have previously been defined in such legislation, it would appear that this directive is unlikely to be upheld if challenged in court.
The executive order also directs the attorney general to “immediately issue guidance” to federal agencies to “correct” the Biden administration’s so-called “misapplication of the Supreme Court’s decision in Bostock v. Clayton County,” with regard to “gender identity-based access to single-sex spaces” (such as a bathroom). In other words, the executive order intends to clarify that only biological males and females should use their respective bathrooms or other “single-sex spaces.” The Attorney General was also directed to issue guidance “to ensure the freedom to express the binary nature of sex and the right to single-sex spaces in workplaces and federally funded entities covered by the Civil Rights Act of 1964.”
“Keeping Americans Safe in Aviation”: Requiring the FAA to Rescind DEI initiatives
This executive order criticizes the Federal Aviation Administration (FAA) for “elevating dangerous discrimination over excellence,” for example, by seeking to “specifically recruit and hire individuals with serious infirmities that could impact the execution of their essential life-saving duties.” The order characterizes DEI hiring as “illegal,” defining this to include hiring “on the basis of race, sex, disability, or any other criteria other than the safety of airline passengers and overall job excellence, competency, and qualification.”
The FAA, therefore, was directed to “immediately return to non-discriminatory, merit-based hiring” and to rescind all DEI initiatives at the FAA, including “preferencing policies or practices.”
The executive order took immediate effect on January 21, 2025. Though it only targets the FAA, private employers should take note that the Trump administration explicitly states its view that hiring preferences based on factors not based on merit — such as one’s protected class — are “illegal.”
What’s Next for the Private Sector?
No doubt, these executive orders represent a sharp pivot away from prior administrations’ longstanding policy of promoting diversity initiatives, even when not solely merit based. But, employers should not misinterpret these executive orders as an indication that existing anti-discrimination laws are no longer in effect. Rather, the time has come to be circumspect about what DEI initiatives a company is promoting to ensure that they do not run afoul of these new requirements. The first step is understanding that employment actions that discriminate on the basis of a protected characteristic in favor of a person from a different protected classification are illegal, even if done with the best intentions and for purposes of filling a quota or effectuating diversity. Companies should review their recruitment, hiring, and advancement policies and procedures to ensure that they are making merit-based selections, unless they are subject to a court-ordered requirement otherwise to right a past wrong.
Nevertheless, it is evident that combating DEI is a top priority for the new administration. Indeed, some Republican state attorneys general have taken the Trump administration’s anti-DEI moves as marching orders to commence their own investigations of private institutions. Days following the issuance of the executive orders detailed above, 11 state attorneys general, spearheaded by Ken Paxton of Texas, sent a letter to certain private financial institutions suggesting that legal action could result to the extent that their “political objectives,” such as race- and sex-based quotas, ran afoul of their fiduciary duties to shareholders. The letter contained requests for information to those institutions regarding their DEI-related initiatives. For example, one company was asked to rationalize its stated goals to “increase the share of women in its senior leadership ranks by 3% each year” and to “boost the share of Black and Latino people in its U.S. workforce by 30% by 2024.” Another company was asked to explain the actions it has taken in relation to its “pledge to hire 4,000 Black students by 2024” as part of a “Racial Equity Commitment” and further explain why it had hired employees whose “only job” was to help “increase Black executive directors and managing directors.” Yet another company was questioned regarding its “Supplier Diversity” program, which committed the company to “seek out diverse-owned companies that can meet [its] business needs.” The companies were also interrogated regarding their “net-zero commitments and their related use of proxy votes and shareholder engagement on climate issues.”
These requests contained in the Paxton letter may serve as a roadmap or forecast for what private employers — particularly large employers within the industries identified above (“major corporations, financial institutions, the medical industry, large commercial airlines, law enforcement agencies, and institutions of higher education”) — can expect from the Trump administration and a foreshadowing of what is to come. We expect that the Trump-era EEOC will likely prioritize and scrutinize DEI programs, either in conjunction with its overall strategic enforcement plan or in the ordinary course of its charge investigations, such that private employers may be indirectly impacted. Indeed, in the press release announcing the appointment of Andrea Lucas as acting chair of the EEOC, Lucas promised that, “consistent with the President’s Executive Orders and priorities, my priorities will include rooting out unlawful DEI-motivated race and sex discrimination.”
Unless a court enjoins these executive orders, Congress passes a contrary law, or a new administration takes office and rescinds them, the executive orders will have the force of law. Accordingly, employers are well-advised to immediately review their explicit DEI programs and policies as well as their unwritten policies and practices that may be impacted by DEI initiatives (i.e., recruiting, promotion, and retention policies) and make any adjustments to them now, before you become the subject of the next state attorneys general letter or executive order.
For guidance on the developing legal landscape for DEI in the workplace, consult your Akerman Labor and Employment attorney.