President Trump’s DEI Executive Orders: Recent developments for employers to know

At a glance

• President Trump's Executive Order (EO) on 'Ending Illegal Discrimination and Restoring Merit-Based Opportunity' affects diversity, equity, and inclusion (DEI) policies in both federal and private sectors.
• Federal agencies issued memoranda providing guidance on implementing the EO, including ending certain DEI practices and programs.
• Early enforcement actions by federal agencies, such as the Federal Communications Commission (FCC), have begun investigating companies' DEI practices.
• Legal challenges to the EO have been filed, arguing it violates constitutional rights and is unconstitutionally vague.
• Employers are awaiting further guidance from the Trump Administration on how to comply with the EO.

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Following President Donald Trump’s January 21, 2025 EO titled, 'Ending Illegal Discrimination and Restoring Merit-Based Opportunity,' recent federal developments will impact how companies approach their review of existing DEI materials for compliance with the DEI EO and anti-discrimination laws.

The EO affects DEI and accommodation and affirmative action policies, practices, and programs in the federal government and private sector. See our previous alert for more details.

In the weeks since the EO’s issuance, we have observed government memoranda and early enforcement actions by federal agencies that provide insights into how the government may interpret and apply the EO. Litigation challenging the EO has also begun.

Below, we highlight recent developments for employers as they await additional guidance from the Trump Administration.

Federal agency memoranda addressing President Trump’s DEI EOs

Various federal memoranda released in February might signal how the Trump Administration ultimately could define 'illegal DEI'. These include:

OPM memorandum: 'Further guidance regarding ending DEIA offices, programs and initiatives' 

A memorandum dated February 5, 2025 from the Office of Personnel Management (OPM) provides guidance on implementing President Trump’s DEI EOs in the federal workplace and may inform private-sector compliance efforts.

Directed at heads and acting heads of departments and agencies, the OPM memorandum provides that 'unlawful discrimination related to DEI includes taking action motivated, in whole or in part, by protected characteristics. To be unlawful, a protected characteristic does not need to be the sole or exclusive reason for an agency’s action.'

The memorandum directs officials to end several practices, including:

• Diversity requirements for the composition of hiring panels, as well as for the composition of candidate pools (also referred to as 'diverse slate' policies).
• Employee Resource Groups (ERGs) that promote unlawful DEI and accessibility (DEIA) initiatives or advance recruitment, hiring, preferential benefits (including, but not limited to, training or other career development opportunities), or employee retention agendas based on protected characteristics.

• If an agency exercises its discretion to permit ERGs, affinity group events, or other similar events, the agency may not draw distinctions based on any protected characteristic in granting permission to groups and events.
• For example, an agency cannot permit the formation of ERGs only for certain racial groups but not others, or only for one sex, or only certain religions but not others.
• The memorandum notes that 'different considerations may apply where employees form workplace groups on the basis of similar interests or experiences, and not protected characteristics.'

• Attendance at events that is restricted (explicitly or functionally) by any protected characteristics or segregation of attendees by protected characteristics during events.
• 'Special Emphasis Programs' that 'promote DEIA based on protected characteristics in any employment action or other term, condition, or privilege of employment, including but not limited to recruiting, interviewing, hiring, training or other professional development, internships, fellowships, promotion, retention, discipline, and separation.'

Attorney General memoranda: 'Ending illegal DEI and DEIA discrimination and preferences' and 'Eliminating internal discriminatory practices' 

On February 5, 2025, newly confirmed Attorney General Pam Bondi issued memoranda addressing President Trump’s DEI EO. A memorandum titled, 'Ending Illegal DEI and DEIA Discrimination and Preferences,' states that the United States Department of Justice’s Civil Rights Division 'will investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector and in educational institutions that receive federal funds.'

The memorandum also directs the Civil Rights Division and Office of Legal Policy to jointly submit a report with recommendations for enforcing civil rights laws and taking other appropriate measures to end illegal discrimination and preferences – including policies relating to DEI and DEIA – by March 1, 2025.

A separate memorandum addressing the elimination of internal discriminatory practices targets 'race- or sex-based preferences, diversity hiring targets, or preferential treatment based on DEI- or DEIA-related criteria' within federal agencies. It directs departments to 'pay particular attention to ending references to DEI or DEIA in training and programs, including references to ‘unconscious bias,’ ‘cultural sensitivity,’ ‘inclusive leadership,’ and any emphasis on race- or sex-based criteria rather than merit; policies and guidelines, including hiring, promotion, or performance-evaluation policies; and vendor contracts and budget materials.'

Both memoranda clarify that they are 'intended to encompass programs, initiatives, or policies that discriminate, exclude, or divide individuals based on race or sex' and do not 'prohibit educational, cultural, or historical observances – such as Black History Month, International Holocaust Remembrance Day, or similar events – that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.'

Recent enforcement action highlights initial focus on company statements, DEI training, and DEI teams

In one of the earliest – if not the first – federal enforcement actions of the new Administration on this subject, the FCC announced that its Enforcement Bureau has opened an investigation into two companies’ DEI practices.

The FCC cited 'substantial evidence that companies are still engaging in the promotion of DEI' as grounds for the investigation, including the following:

• The first company’s statement on its website promoting DEI is 'a core value of its business' and public reports that the company has an entire 'DEI infrastructure' that includes annual 'DEI days,' 'DEI training for company leaders,' and similar DEI initiatives.
• Alleged executives whom the second company had specifically dedicated to promoting DEI across parts of its business.

FCC Chairman Brendan Carr ended the letter by requesting an accounting of the companies’ 'DEI initiatives, preferences, mandates, policies, programs, and activities – including DEI activities that are ongoing but may be operating today under different labels.'

Early litigation challenges the EOs on First Amendment grounds

There is at least one challenge to the President’s DEI EO pending in federal district court. On February 3, 2025, plaintiffs National Association of Diversity Officers in Higher Education, American Association of University Professors, Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore filed a lawsuit in a Maryland federal district court on their own behalf, and on behalf of their members, challenging President Trump’s EO 14151, Ending Radical Government DEI Programs and Preferencing,' and EO 14173, 'Ending Illegal Discrimination and Restoring Merit-Based Opportunity.'

The plaintiffs seek a declaratory judgment that the EOs are unlawful and unconstitutional and request a preliminary and permanent injunction enjoining the defendants other than President Trump from enforcing the EOs.

The plaintiffs argue that EO 14173 is unconstitutionally vague in a manner that violates the Fifth Amendment’s Due Process Clause; violates the Free Speech Clause of the First Amendment because it impermissibly restricts the exercise of the plaintiffs’ constitutionally protected speech based on its content and viewpoint; and violates the separation of powers.

For more information

We will continue to monitor developments. In the meantime, for more information about the EO and its implications, please contact any of the authors or your DLA Piper relationship attorney and ask about our toolkit, 'Assessing risk under President Trump’s DEI Executive Order: A strategic roadmap for private employers and federal contractors.' For more information on President Trump’s EOs and other federal developments, see our President Trump Executive Orders topic hub.