Slow and Steady Employers Win the DEI Race

PUBLISHED FEBRUARY 2025

Within his first two days of taking office, President Trump signed several executive orders rolling back diversity, equity, and inclusion (DEI) initiatives in the federal government. These orders generally:

• Eliminated DEI programs in federal agencies.

• Rescinded affirmative action and DEI requirements for federal contractors.

• Directed all employers to stop “illegal” DEI employment practices (e.g., those that give preferences based on race or sex).

• Repealed a previous executive order on DEI efforts within the federal workforce.

• Ordered federal agencies to end DEI programs immediately.

• Placed federal employees in DEI roles on leave and required reporting (by other employees) of attempts to disguise DEI positions or activities.

• Limited the legal definition of “sex” to strictly male and female and mandated federal enforcement of sex-based rights.

• Repealed executive orders supporting DEI, including the 1965 order requiring that federal contractors maintain affirmative-action programs for women and minorities.

• Ordered federal agencies to enforce existing civil rights laws and stop illegal DEI-based preferences in the private sector.

• Required federal contractors to certify that their DEI programs comply with federal non-discrimination laws.

• Directed the U.S. attorney general to recommend enforcement strategies for civil rights laws and identify companies with the most significant discriminatory DEI practices.

• Set deadlines for federal agencies and officials to provide guidance and information in support of the executive order mandates.

What Employers Should Know

Despite possibly feeling overwhelmed and confused by the number of documents flowing out of Washington, employers should remain calm. Executive orders cannot override existing, legislated equal-employment opportunity laws such as Title VII or Supreme Court decisions. Moreover, the orders primarily target “illegal” DEI practices based on existing laws and judicial interpretations.

Employers should work with legal counsel to:

1. Better Understand Orders and Guidance: Seek to understand how these changes impact specific workplaces, and ignore frenzied or extreme interpretations and comments.

2. Assess DEI Programs: Based on an objective understanding of the changes and existing employment laws, evaluate DEI-related documents and programs, including:

• Affirmative action plans and reports or presentations.

• Recruiting or hiring forms and materials (including those based on the “Rooney,” or similar, rule).

• Compensation or performance materials with goals tied to DEI.

• DEI training materials.

• Training, meeting attendance or other documents furthering  race- or gender-based goals or preferences.

• Affinity group charters and activities.

• Race- or gender-based internships or “shadowing” opportunities.

• ESG programs and public DEI statements (including website representations).

• Mission and vision statements referencing DEI goals or aspirations.

Key to any assessment is knowing that employers need not change many of their positive policies, procedures, programs, and practices because they apply and benefit all employees equally in a lawful manner.

3. Conduct Internal Reviews: Speak with colleagues to determine where DEI policies or communications exist in their departments, including marketing materials, due diligence documents, and regulatory filings.

4. Train Leadership: Ensure decision-makers understand the legal limits of DEI programs and avoid illegal preferences when making assignments or decisions.

5. Review Workplace Facilities: Evaluate gender-related accommodations like bathrooms and changing rooms or showers.

6. Remember State and Local Laws: Evaluate all policies, practices, procedures, and programs for compliance with applicable state and local laws.

Prioritizing Compliance

Employers are likely to prioritize their assessments in different ways. For example:

• Government contractors: May schedule the timing of their assessment based on application or contract renewal dates to ensure compliance is updated.

• Other businesses: May start with high-visibility areas like training programs to ensure all races and sexes are represented and included equally and respectfully.

Documenting Compliance

Similar to the elementary math class requirement of “showing your work,” employers should thoroughly document all their compliance efforts, whether legally privileged or not. This can help:

• Refresh memories.

• Demonstrate good-faith efforts in case of audits by amped-up government agencies or legal challenges by employees.

• Protect against reports of discriminatory practices by individuals with False Claims Act implications.

Understanding the issues, organizing assessments, and working in a slow and steady but proactive manner will help all employers win the DEI legal compliance race.