/>iIn just his first days in office, President Donald Trump has signaled that his Administration’s efforts to curb Diversity, Equity, and Inclusion (DEI) practices will start with the federal government but may soon have sweeping impacts on the private sector. This post details President Trump’s Executive Order that directs the U.S. Department of Justice, and other agencies, to begin preparing to combat the DEI initiatives of private employers, and what’s to be expected in the months ahead.
Executive Order Details Private Sector Enforcement
Through a January 22, 2025 Executive Order, the Trump Administration directed all federal government departments and agencies to end DEI practices internally, and DEI federal employees were placed on leave. Additionally, agencies were directed to eradicate “illegal private-sector DEI preferences, mandates, policies, programs, and activities.”
The Executive Order specifically tasked the Attorney General, in concert with other agency leaders, with crafting a report containing a strategic enforcement plan and “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 report must be delivered to the President within four months.
The private sector strategic enforcement plan must identify the following:
• key sectors “of concern” within each agency’s jurisdiction;
• 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 (whether specifically denominated “DEI” or otherwise) that constitute illegal discrimination or preferences;
• up to nine potential civil compliance investigations (per each agency) 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 one billion dollars; and
• other federal litigation and regulatory opportunities.
The Administration already provided some indication as to which industries it believes are “of concern” when it pointed out in the order, “influential institutions of American society, including the Federal Government, major corporations, financial institutions, the medical industry, large commercial airlines, law enforcement agencies, and institutions of higher education” have adopted and actively use DEI policies. Requirements specific to the education sector, in alignment with Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023), also were highlighted.
What to Expect Moving Forward
A number of Trump appointees already have vowed to make rooting out DEI one of their top priorities. To carry out these promises, President Trump’s Order declares DEI eradication will be achieved through the enforcement of existing federal civil rights laws. Among the most commonly evoked federal civil rights laws, which employers must continue to comply with, are the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA). Title VII of the Civil Rights Act specifically prohibits employment discrimination based upon race, color, religion, sex and national origin.
Although it may be difficult to predict what the Administration’s strategic enforcement plan will look like in four months, several developments may inform the trajectory of federal anti-DEI ambitions in the days ahead including: (1) the U.S. Supreme Court’s decision in Ames v. Ohio Department of Youth Services; (2) the willingness of lower courts to apply federal civil rights laws to current anti-DEI cases; and (3) the priorities of new leadership at the U.S. Equal Employment Opportunity Commission (EEOC).
(a) Ames v. Ohio Department of Youth Services.
This U.S. Supreme Court case, set to be heard in late February, could make it easier for “majority-group plaintiff[s]” to bring some employment discrimination lawsuits, which may be used to resist DEI programs in the private sector. Ames tackles the issue of whether majority groups in “reverse discrimination” cases should be subjected to a higher standard to bring a claim under Title VII of the Civil Rights Act. A handful of federal circuit courts of appeal require such plaintiffs to show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” While Ames is not applicable to all Federal circuits, if the Court lowers the burden for assessing what constitutes illegal bias, non-minority workers will face fewer hurdles to state a claim in a number of jurisdictions, including in anti-DEI cases which typically involve “majority-group plaintiff[s].”
(b) Currently Litigated Anti-DEI Claims.
A number of challenges to DEI policies already have been lodged in courts across the country, under Title VII of the Civil Rights Act and similar state laws. These claims typically are brought as disparate treatment, hostile-work environment and retaliation actions. The majority of the cases have only been brought within the last two years. So, legal precedent concerning their issues remains undeveloped. Some patterns have emerged though, including the survival of specifically alleged DEI-related discrimination claims challenged by a motion to dismiss for failure to state a claim, and the lack of courts to whole-heartedly apply Students for Fair Admission in the employment discrimination context.
Specific DEI Discrimination Claims Survive Early Dismissal. General opposition to DEI policies typically has been insufficient to support a discrimination claim, but specific acts of discrimination alleged in concert with a DEI policy can help a claim survive a motion to dismiss.
• De Piero v. Pennsylvania State Univ., (E.D. Pa. 2024) – In this case, a hostile work environment claim based on a series of “anti-racism” trainings survived a motion to dismiss for failure to state a claim. The court found the plaintiff properly alleged he was “obligated to attend multiple conferences or trainings that discussed racial issues in essentialist and deterministic terms—ascribing negative traits to white people or white teachers without exception and as flowing inevitably from their race.” Among the instances the court considered were a professional development meeting on multiculturalism that included “supposed examples of ‘racist’ comments” where every hypothetical perpetrator was white, and an event called “Arts and Humanities as Activism,” where the plaintiff alleged the facilitator “condemn[ed] white people for no other reason than they spoke or were simply present while being ‘white.’” The court stated that whether there is any merit to the plaintiff’s claims was an inquiry for another day, based on the specific motion. See also Johnson v. Oregon (D. Or. 2024).
• Sharpe v. Primex Garden Ctr., (E.D. Pa. 2024) – Allegations that a new company policy, which a plaintiff claimed was based on “woke” principles, viewed in concert with a manager’s decision to soften the blow of his firing by acknowledging that he “underst[ood] that white people [the plaintiff’s] age grew up in a different time” were satisfactory to survive a motion to dismiss based on disparate impact theory.
• Diemert v. City of Seattle, (W.D. Wash. 2023) – A plaintiff stated a plausible claim of retaliation based on incidents he alleged occurred as part of the city’s Race and Social Justice Initiative, when he claimed he was treated adversely following his filing of a related EEOC complaint.
• Weaver v. Ohio Farmers Ins. Co., (9th Dist. Ct. Ohio 2022) – The mere fact that an employer had a DEI policy that included a goal of increasing the number of women and minorities in leadership positions did not alone support a discrimination claim. See also Young v. Colorado Dep’t of Corr., (10th Cir. 2024) (A hostile work environment claim failed because the plaintiff did not allege specific harassment other than being “offended by the [diversity] training,” and “upset by the Department’s response when he complained about the [diversity] training.”
Limited Applicability of Students for Fair Admission. In Students for Fair Admission, Inc. v. President & Fellows of Harvard College, the U.S. Supreme Court held race-based college admissions programs violated the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. Following the 2023 case, courts have yet to fully endorse the holding of Students for Fair Admissions as applicable to DEI-related discrimination claims.
For example, the court in Dzibela v. BlackRock Inc., a 2024 District of New Jersey case, stated that Students for Fair Admissions did not consider the DEI policies of private employers, much less rule that such efforts were unlawful. So, an argument that Students for Fair Admission is a “precursor to much more sweeping elimination of all racial discrimination …, including DEI hiring practices by private employers under Title VII” was not considered persuasive. Despite this, applicability of Students for Fair Admission to the employment discrimination context has been discussed by courts in concurring opinions, such as the Sixth Circuits’ decision in Smyer v. Kroger Ltd. P’ship I.
(c) New Leadership at the EEOC
Tasked with guiding enforcement of federal employment antidiscrimination laws, the new Acting Chair of the EEOC may become one of the most influential people in Washington D.C. when it comes to the Trump Administration’s crackdown on “illegal private-sector DEI.” Andrea Lucas was appointed to that role on January 21, 2025. In a press release, the EEOC outlined Lucas’ day one priorities including, “rooting out unlawful DEI-motivated race and sex discrimination[.]”
Exactly how Lucas will institute private sector enforcement is unknown, but the Acting Chair has discussed her thoughts related to the topic, including diversity initiatives like voluntary affirmative action programs. In a May 2024 speech, Lucas acknowledged voluntary affirmative action programs were lawful, but further described such policies as an “extremely narrow exception to the rule.”
While the lawfulness of voluntary affirmative action programs ultimately rests with the courts, Lucas’ stated DEI priorities and a narrow reading of the law may equate to stricter enforcement related to voluntary affirmative action programs compared to prior presidential administrations.
