DEI: Trump Targets DEI in Public and Private Sectors

In his first week in office President Trump signed several executive orders aiming to stamp out “unlawful DEI practices” in both the public and private sectors. 

Ending DEI programs in the federal government: Two executive orders – “Ending Radical and Wasteful Government DEI Programs and Preferencing” and “Reforming the Federal Hiring Process and Restoring Merit to Government Service” take aim at perceived “unlawful DEI practices” in the U.S. federal government. Specifically, the orders require that agency heads:

• Terminate all “mandates, policies, programs preferences, and activities” in the federal government;
• Terminate all federal government offices and positions associated with DEI or DEI-related programs and initiatives. 
• Provide the White House with a list of all federal contractors and federal grantees who have provided DEI training or training materials to the government or used funding to advance DEI programs or initiatives. 

The White House will continuously monitor and evaluate agency heads’ progress on the above.

The bottom line: In essence, the two orders collectively aim to eliminate all possible links to DEI and DEI programs and initiatives from the federal government, including those put in place by the previous Biden administration. 

Targeting the private sector: President Trump also issued an executive order – “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” – seeking to eliminate “unlawful DEI practices” by private employers. Key provisions include:

• Federal Contractor Affirmative Action Requirements Nixed: The order eliminates longstanding provisions requiring federal contractors to take affirmative action to increase minority representation in their workplaces, including submission of affirmative action plans to the federal government. 
• Federal Contractor Anti-DEI Compliance Certifications: Instead, federal contractors will now be required to certify that they are in compliance with federal anti-discrimination laws and do not have any DEI programs that violate such laws.
• Increased oversight of private sector DEI practices: The order directs federal agencies to emphasize investigation and enforcement of perceived “unlawful DEI practices.” 
• DEI Shame Report: The order directs the Attorney General to publish a report:
  1. Listing companies that are “the most egregious and discriminatory DEI practitioners;” 
  2. Identifying up to nine publicly traded corporations for potential civil compliance investigations; and
  3. Recommending litigation against companies that have “unlawful DEI practices” and further regulatory action to end “unlawful DEI practices.” 

What is an “unlawful DEI practice?” The impact of the EO will largely hinge on how the administration defines “unlawful DEI practices.” The administration’s interpretation could potentially encompass some current, commonly instituted DEI programs, such as scholarships or targeted outreach programs, which have already been the subject of several lawsuits. Whether federal courts agree with any such interpretation remains to be seen – for now, the law remains unchanged.

Implications for employers:

• Outside of ending affirmative action requirements for federal contractors, the law has not changed – DEI practices that are compliant with federal anti-discrimination laws are still permissible.
• The EO may result in new regulations, including for federal contractors – stay tuned.
• In the meantime, consider an audit of current DEI practices to ensure legal compliance.