Link to ** UPDATE ** On March 3, 2025, the federal judge in the Maryland lawsuit denied the Trump administration’s request to stay the preliminary injunction discussed below. ** UPDATE ** On March 3, 2025, the federal judge in the Maryland lawsuit denied the Trump administration’s request to stay the preliminary injunction discussed below.
Link to The judge ruled that the administration failed to demonstrate a likelihood of success on the merits and that the injunction was necessary to prevent potential violations of free speech and due process rights. The judge ruled that the administration failed to demonstrate a likelihood of success on the merits and that the injunction was necessary to prevent potential violations of free speech and due process rights.
Link to Stay tuned for further updates as this case progresses through the courts and read on for more information about the injunction at issue. Stay tuned for further updates as this case progresses through the courts and read on for more information about the injunction at issue.
On February 21, 2025, a federal district court in Maryland issued a preliminary nationwide injunction temporarily blocking significant provisions from two of President Trump’s executive orders targeting DEI programs. In a 63-page opinion, the judge concluded that the plaintiffs were likely to prevail in their challenges to these provisions on First and Fifth Amendment grounds.
While the district court’s order provides some temporary relief, it does not prevent the Trump administration from pursuing individual enforcement actions against companies that it believes operate “illegal” DEI programs (including enforcement actions by the DOJ and the Equal Employment Opportunity Commission), among other things.
On February 24, defendants in the case filed a notice of appeal with the Court of Appeals for the Fourth Circuit. While it remains to be seen how the appeal plays out, in the meantime, it’s important for employers to understand what the injunction did and did not do.
Link to Background Background
The city of Baltimore and several academic and restaurant workers’ groups challenged one provision in EO 14151 (Ending Radical and Wasteful Government DEI Programs and Preferencing) and two provisions in EO 14173 (Ending Illegal Discrimination and Restoring Merit-Based Opportunity) on constitutional grounds.
Plaintiffs sued Trump and these agencies: (1) the Department of Health and Human Services; (2) the Department of Education; (3) the Department of Labor; (4) the Department of the Interior; (5) the Department of Commerce; (6) the Department of Agriculture; (7) the Department of Energy; (8) the Department of Transportation; (9) the Department of Justice; (10) the National Science Foundation; and (11) the Office of Management and Budget. The EEOC is not a defendant.
By way of reminder, and as explained in our blog A Roadmap to Trump’s DEI Executive Orders for US Employers, executive orders are a powerful tool through which the President issues formal directions to the executive branch, agencies and officials on how to carry out the work of the federal government. Challenges to — and subsequent judicial review of — EOs are commonplace.
Link to The NADOHE v. Trump decision and defendants’ appeal The NADOHE v. Trump decision and defendants’ appeal
This chart outlines the challenged provisions in the EOs, and the district court’s response:
| Challenged Executive Order | Challenged Provision | District Court’s Ruling |
| EO 14151 (Ending Radical and Wasteful Government DEI Programs and Preferencing) | The “Termination Provision” directing all executive agencies to terminate “equity-related” grants or contracts. | The court enjoined the government defendants from freezing or terminating existing “equity-related” contracts and grants (under EO 14151). The court held that the plaintiffs had shown a likelihood of success on their claim that the Termination Provision is unconstitutionally vague because it fails to provide clear guidance on what constitutes “equity-related” grants or contracts, which could lead to arbitrary and discriminatory enforcement. |
| EO 14173 (Ending Illegal Discrimination and Restoring Merit-Based Opportunity) | The “Certification Provision” requiring federal contractors and grantees include in every contract or grant award a certification, enforceable through the False Claims Act, that it “does not operate any programs promoting DEI that violate any applicable federal anti-discrimination laws.” | The court enjoined the government defendants from: – Requiring federal contractors and grant recipients to certify that they do not “operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws;” – Requiring federal contractors and grant recipients “to agree that [their] compliance in all respects with all applicable Federal anti-discrimination laws is material” for purposes of the False Claims Act; and – Bringing any enforcement action targeting “DEI programs or principles.” The court held that the plaintiffs had shown a likelihood of success on their claim that the Certification Provision violates the First Amendment. |
| EO 14173 (Ending Illegal Discrimination and Restoring Merit-Based Opportunity) | The “Enforcement Provision” directing the Attorney General to take measures to encourage the private sector to end illegal DEI, and to identify potential civil compliance investigations. | The court enjoined the federal agency defendants from “bring[ing] any False Claims Act enforcement action, or other enforcement action, pursuant to the Enforcement Threat Provision, including but not limited to any False Claims Act enforcement action premised on any certification made pursuant to the Certification Provision.” The court held that the plaintiffs had shown a likelihood of success on their claims that the Enforcement Threat Provision violates the First Amendment and the Due Process Clause of the Fifth Amendment because there is no guidance regarding the DEI programs or practices that the administration considers illegal. It did not “enjoin the Attorney General from … engaging in investigation” of DEI programs or to prohibit the Attorney General from preparing a report identifying investigation targets. |
On Monday, February 24, defendants filed a Notice of Appeal with the Court of Appeals for the Fourth Circuit. We are closely monitoring what follows.
Link to What didn’t the Maryland district court do? What didn’t the Maryland district court do?
- The preliminary injunction does not change the requirement that federal contractors cease Affirmative Action Plans (other than for veterans and the disabled) by April 21, 2025.
- The preliminary injunction does not prevent the Attorney General from preparing reports or pursuing investigations related to the DEI orders.
- The preliminary injunction does not directly apply to the EEOC.
Link to What’s next? What’s next?
As expected, the Trump administration is appealing this decision to the Fourth Circuit.
A separate challenge to EO 14151 and EO 14173, as well as EO 14168 (“Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”), is pending in the United States District Court for the District of Columbia (National Urban League et al. v. Trump).
Further challenges are likely, and it’s entirely plausible that the fate of the DEI Orders ultimately goes before the US Supreme Court.
Link to Recommendations for employers Recommendations for employers
The Trump administration (and activists who are pressuring companies on the basis of their DEI initiatives with social media campaigns and the threat of legal action) likely will try to further their policy goals with respect to DEI in the private sector through any available means (e.g. the EEOC or other agencies not named in the lawsuit). As such the increased risk profile for certain DEI programs persists, and a DEI Health Check conducted under legal privilege remains a prudent and recommended action.
Our DEI EO Task Force is closely tracking challenges to Trump’s Executive Orders, industry shifts regarding DEI and related litigation activity. Contact your Baker McKenzie employment lawyer for more.