Friday evening, a Federal District judge temporarily blocked nationwide most of President Trump’s Executive Order targeting private sector DEI programs.
What the ruling does: The decision by Judge Adam Abelson of the District of Maryland specifically blocks:
(1) Federal contractor compliance certification: the provision requiring federal contractors to certify that they are in compliance with federal anti-discrimination laws and do not have any DEI programs that violate such laws, and
(2) Threat of enforcement against perceived “illegal” DEI programs: the provision that requires the Attorney General and other agency heads to target private employers for perceived “illegal” DEI programs.
Ruling Does not Block AG Report Listing Companies:
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Judge Abelson specifically declined to block the Attorney General from publishing a report of recommendations for enforcing anti-discrimination laws against “illegal” DEI practices and “other appropriate measures to encourage the private sector to end discrimination and preferences, including DEI.”
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The Judge also declined to block the Attorney General from conducting investigations; the ruling only blocks the administration from enforcing the Executive Order against perceived “illegal DEI programs.”
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As a result, the EO’s requirement that “each agency shall 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” remains in force.
Free speech and vagueness concerns: Judge Abelson cited restrictions on free speech and the administration’s inability to define what constitutes an “illegal” DEI practice as the primary reasons for blocking the Executive Order.
Why it matters: For now, the Trump administration is prohibited from requiring federal contractors to certify that their DEI practices do not violate the law, which removes the threat of potential False Claims Act and blacklisting risks.
Can the Trump administration still target employers for enforcement? The short answer is yes.
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For those private employers who are not federal contractors, the Executive Order did not actually change existing law on which DEI practices are lawful or unlawful.
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Accordingly, while the decision here prevents the government from “enforcing” the Executive Order against private employers for alleged unlawful DEI practices, it does not prevent the government from doing so through existing, unchanged federal anti-discrimination laws, such as Title VII.
What’s next: The Trump administration is likely to appeal the judge’s decision. The process for such an appeal and any subsequent decision that might lift the current injunction could take multiple months if not longer. For now, the Executive Order is largely blocked. We will add more information about the impact of the decision on our Inclusion and Diversity page of our website as it becomes available.
HRPA DEI resources:
