President Trump revokes federal diversity, equity and inclusion and affirmative action Executive Orders

At a glance

• President Donald Trump recently issued an Executive Order (EO) that impacts the use of diversity, equity, inclusion, and accessibility (DEI or DEIA). 
• The EO revokes multiple DEI, DEIA, and affirmative action EOs and memoranda, 
• It also requires federal agencies to eliminate DEI, DEIA, and affirmative action programs. 
• Further, it directs the Attorney General and all federal agencies to combat illegal private-sector DEI preferences and activities.

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On January 21, 2025, President Donald Trump issued an EO titled Ending Illegal Discrimination and Restoring Merit-Based Opportunity, which impacts the use of 'dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called ‘diversity, equity, and inclusion’' or ‘diversity, equity, inclusion, and accessibility’ by the federal government, private companies, and other institutions. 

The EO states that DEI and DEIA policies 'can violate the civil-rights laws of this Nation' and 'undermine our national unity, as they deny, discredit, and undermine the traditional American values of hard work, excellence, and individual achievement in favor of an unlawful, corrosive, and pernicious identity-based spoils system'.

Specifically, the EO:

• Revokes multiple DEI, DEIA, and affirmative action executive orders and presidential memoranda.
• Requires federal agencies to take certain steps to eliminate DEI, DEIA, and affirmative action activities and programs in the federal government. For example, on the heels of this EO, the Office of Personnel Management sent a memo to all agency and department heads closing agency DEIA offices. This includes sending agency-wide notices to all employees asking about efforts to 'disguise these programs', informing all employees of DEIA offices they are now placed on administrative leave, and removing all outward-facing media of DEIA offices.
• Broadly directs the Attorney General (AG) and all federal agencies 'to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities'.

The White House also published a fact sheet on the EO, stating the Trump Administration’s position that the EO will expand 'individual opportunity by terminating radical DEI preferencing in federal contracting and directing federal agencies to relentlessly combat private sector discrimination'.

This represents a potential sea change in DEI practices for every organization (both federal contractors and private employers) across the United States that maintains DEI policies and practices. 

If DLA Piper can be a guide during this period of change, please contact us so that we can assist in assessing how this EO (and related regulatory guidance) specifically impacts your organization.

Implications and takeaways for federal contractors and private employers

The EO is wide-ranging and far-reaching, bringing with it both immediate impacts and uncertainty. With this in mind, below are potential key implications of the EO:

• Moving forward, federal contractors will be required to certify that they do not 'operate any programs promoting DEI that violate any applicable federal anti-discrimination laws'.
• The EO does not impact federal anti-discrimination, anti-harassment, and anti-retaliation laws and protections. The EO states that the administration is committed to combatting discrimination in the workplace. Other EOs, such as the Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government may impact the scope of protections as interpreted and enforced by the Biden Administration.
• The EO only targets 'illegal DEI' practices and policies in the federal government and private sector, which mandate the consideration of race, sex, gender identify, sexual preference, or religion in employment decisions in lieu of individual initiative, skills, performance, and hard work. The EO does not define the term 'illegal DEI'; however, the EO directs the AG to study this issue and generate a report within 120 days, demonstrating, although not definitively, that the current administration views all DEI as 'illegal DEI'. While awaiting further guidance, employers are recommended to consider the positions outlined in the EO when analyzing existing DEI efforts for risk compliance.
• The ultimate impact on current compliance of the EO on Office of Federal Contract Compliance Programs (OFCCP) audits is unclear. Federal contractors undergoing an OFCCP audit pertaining to an alleged affirmative action plan violation should be aware that those audits are being paused, as the Acting Secretary of Labor directed all Department of Labor workers — including the OFCCP — to cease work all pending cases, conciliation agreements, investigations, complaints and 'any other enforcement-related or investigative activity'. See DOL January 24, 2025 cease and desist order. The DOL further noted that it no longer has any authority under the rescinded EO 11246 or its regulations.
• We recommend federal contractors and employers consult with counsel to review any current DEI policies, practices, and procedures in place, as well as to review current federal data reporting and gathering practices in light of the EO.
• Federal contractors and employers are encouraged to review any DEI practices for compliance with reasonable diligence. Organizations’ public/outward-facing media (eg social media, websites), both past and present, may heighten the risk of review by the administration.
• Federal contractors should be aware of potential whistleblower actions and the risk of funds potentially being withheld on a contract for any actions taken that are perceived to represent a potential violation of the EO.

Below we discuss the EO in more detail.

Revocation of Executive Order 11246 and other orders

The EO revokes EO 11246, Equal Employment Opportunity, which was initially issued by President Lyndon Johnson in 1965, and subsequently amended by President George W. Bush in 2002, and by President Barack Obama in 2014. 

EO 11246 prohibited federal contractors and subcontractors from discriminating in employment decisions on the basis of race, color, religion, gender identity, national origin, sex, and sexual orientation. It also required federal contractors to take affirmative action to ensure equal opportunity in all aspects of their employment and provided further detail on the nature of affirmative action, including the preparation of affirmative action plans.

The EO also revoked:

• EO 12898, 'Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations'.
• EO 13583, 'Establishing a Coordinated Government-wide Initiative to Promote Diversity and Inclusion in the Federal Workforce'.
• EO 13672, 'Further Amendments to Executive Order 11478 (Equal Employment Opportunity in the Federal Government) and Executive Order 11246'.
• Presidential Memorandum of October 5, 2016, 'Promoting Diversity and Inclusion in the National Security Workforce'.

Federal contractors may continue to comply with the prior regulatory scheme for up to 90 days from the January 21, 2025 date of the new order (until April 21, 2025). The EO does not apply to federal or private employment and contracting preferences for veterans of the US armed forces or those protected by the Randolph-Sheppard Act (which concerns the operation of vending facilities in Federal buildings by licensed blind persons).

Elimination of DEI in the government

The EO directs the head of each agency to include in every contract or grant award to a federal contractor:

• 'A term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all applicable federal anti-discrimination laws is material to the government’s payment decisions for purposes of section 3729(b)(4) of title 31, United States Code'.
• 'A term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate any applicable federal anti-discrimination laws'.

The EO also requires the Director of the Office of Management and Budget (OMB), with the assistance of the AG, as requested, to:

• Review and revise all government-wide processes, directives, and guidance.
• 'Excise references to DEI and DEIA principles' from federal acquisition, contracting, grants, and financial assistance procedures.
• 'Terminate all ‘diversity,’ ‘equity,’ ‘equitable decision-making,’ ‘equitable deployment of financial and technical assistance,’ ‘advancing equity,’ and like mandates, requirements, programs, or activities'.

Private DEI initiatives

The EO also targets illegal DEI, DEIA, and affirmative action activities, policies, and programs in the private sector. It directs the AG, 'in consultation with the heads of relevant agencies and in coordination with the Director of OMB', to submit a report within 120 days 'containing recommendations for enforcing federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI'. 

The EO directs the report to contain:

• 'The most egregious and discriminatory DEI practitioners in each sector of concern'.
• 'A plan of specific steps or measures to deter DEI programs or principles…that constitute illegal discrimination or preferences'.
• 'Other strategies to encourage the private sector to end illegal DEI discrimination and preferences and comply with all federal civil-rights laws'.
• 'Litigation that would be potentially appropriate for federal lawsuits, intervention, or statements of interest'.
• 'Potential regulatory action and sub-regulatory guidance'.

Significantly, the EO also requires each federal agency to '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, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars'. 

The ramifications of civil compliance investigations could be sprawling.

Higher education

The EO also states that the AG and Secretary of Education must jointly issue guidance within 120 days to ensure that all institutes of higher education that receive federal funds, grants, or federal student loan assistance under 20 USC 1070 et seq, comply with Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023). Therefore, the EO ensures additional guidance will be forthcoming regarding college admissions practices.

What’s next?

We expect further updates to come in short order as EO instructs the AG to provide further regulatory guidance within 120 days of the EO. Indeed, on January 23, 2025, the OFCCP issued a communication stating that it will immediately cease:

• 'Promoting ‘diversity'.
• 'Holding Federal contractors and subcontractors responsible for taking ‘affirmative action''.
• 'Allowing or encouraging Federal contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin'.

Stay tuned.

For more information about the EO and its implications, please contact any of the authors or your DLA Piper relationship attorney. For more information on President Trump Executive Orders, see our Hub.