Unpacking the Trump Administration’s DEI Orders and Actions – FAQs and Action Plans

Last updated February 19, 2025

Amidst the ongoing flurry of executive actions targeting Diversity, Equity, and Inclusion (“DEI”) programs and policies, causing confusion and disruption across the federal government and private sectors, companies are struggling to understand the impact of those actions on their organizations. To help companies understand and navigate these actions, we have provided below answers to frequently asked questions and proactive steps to mitigate risks.

Our DEI Strategy + Defense Task Force is continuing to monitor these issues and will provide updates as new developments unfold. We are also hosting a complimentary webinar on March 4, 2025, where we will discuss these issues and how to navigate the growing risks to corporate DEI programs while maintaining a thoughtful approach to upholding corporate values.

What actions has President Trump taken on DEI?

Since taking office, President Trump has issued numerous executive orders and taken other measures aimed at dismantling DEI across the federal government and targeting DEI programs in the private sectors. Several key examples of those actions are below.

• As discussed in our recent client alert, one of the most significant actions was President Trump’s Executive Order 14173 titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “EO 14173”). Among other things, EO 14173 rescinds affirmative action and nondiscrimination requirements under Executive Order 11246, requires federal contractors and grantees to certify that they do not operate any “illegal” DEI programs, and requires the U.S. attorney general to create a strategic enforcement plan identifying specific enforcement targets in the private sector for DEI programs this administration believes violate federal antidiscrimination laws.
• President Trump issued an Executive Order 14168 titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” (the “EO 14168”), defining “sex” as an “individual’s immutable biological classification as either male or female,” calling for various actions to remove “gender identity” protections across the government and in the private sector, and seeking legislation to overturn the U.S. Supreme Court’s decision in Bostock v. Clayton County, finding gender identity discrimination is prohibited by Title VII of the Civil Rights Act.
• President Trump issued Executive Order 14151, titled “Ending Radical and Wasteful Government DEI Programs and Preferencing,” (“EO 14151”) seeking to end DEI programs and offices across the federal government. Since this order was issued, the federal government has taken significant actions to remove virtually all DEI initiatives across the federal government, including eliminating all DEI-related personnel and offices and mandating that preferred pronouns not be used on government email addresses. The Department of Defense issued guidance ending nearly all celebrations of certain demographic groups, including Black History Month. The Office of Personnel Management (OPM) issued a memo instructing federal agencies to terminate many DEI programs, policies, and practices across the federal government, providing a glimpse of what this administration may view as unlawful DEI programs and practices in the private sector.
• Newly minted U.S. Attorney General Pam Bondi issued a February 5, 2025 memorandum, requiring the Department of Justice (DOJ) Civil Rights Division and Office of Legal Policy to submit a report with recommendations for enforcing civil rights laws to end “illegal” DEI programs in the private sector, consistent with EO 14173, including criminal investigations of corporate DEI programs. The memo also provides that the DOJ’s Civil Rights Division will “investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector.”
• The Trump administration has ordered the Office of Federal Contract Compliance Programs (OFCCP) to stop enforcement of EO 11246, including halting all active litigation, audits, and other enforcement actions relating to that law as well as holding in abeyance any audit related to the two other affirmative action laws OFCCP enforces for individuals with disabilities and protected veterans.
• In an unprecedent move, President Trump fired two Democratic EEOC Commissioners and installed Republican Commissioner Andrea Lucas as the Acting EEOC Chair. Andrea Lucas issued a statement indicating that she intends for EEOC to enforce President Trump’s executive orders and priorities, stating:
  
  Consistent with the President’s Executive Orders and priorities, my priorities will include rooting out unlawful DEI-motivated race and sex discrimination; protecting American workers from anti-American national origin discrimination; defending the biological and binary reality of sex and related rights, including women’s rights to single‑sex spaces at work; protecting workers from religious bias and harassment, including antisemitism; and remedying other areas of recent under-enforcement.

How do President Trump’s Executive Orders on DEI apply to my company?

Some of President Trump’s actions apply only to the federal government, but several of his executive orders impact the private sector. EO 14173, for example, applies to all companies in the private sector and has additional implications and requirements for federal contractors and grantees.

• EO 14173 rescinds Executive Order 11246, which means federal contractors are no longer required to create affirmative action plans for females and minorities.
• EO 14173 requires all agencies to include in every federal contact and grant:
  
  (1) a requirement for contractors and grantees to certify that they are not “operat[ing] any programs promoting DEI that violate any applicable Federal anti-discrimination laws”; and
  
  (2) a requirement for contractors and grantees to agree that their “compliance in all respects with all applicable Federal anti‑discrimination laws is material to the government’s payment decisions” for purposes of the False Claims Act (“FCA”).
• EO 14173 instructs the U.S. Attorney General to prepare a strategic enforcement plan to target and “end illegal discrimination and preferences, including DEI,” identifying, among other things, key sectors of concern within each agency’s jurisdiction, the “most egregious and discriminatory DEI practitioners in each sector of concern,” a plan with “specific steps or measures to deter DEI programs or principles” that are unlawful, whether named “DEI” or not. The report must provide specific strategies to “encourage the private sector to end illegal DEI discrimination and preferences and comply with all Federal civil-rights laws,” including requiring each federal agency (which includes over 400 agencies) to identify “[u]p 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.”

Have President Trump’s executive orders been legally challenged?

Yes. On February 3, 2025, several organizations, including a group representing university diversity officers, filed a lawsuit in a federal district court in Maryland, seeking to enjoin EO 14173 and EO 14151 as unconstitutional for exceeding President Trump’s authority and violating the First and Firth Amendments to the U.S. Constitution. It is unclear whether this challenge will be successful.

Some prior precedent, however, exists for overturning similar executive orders. Under President Trump’s first administration, his executive order banning federal contractors from providing critical race theory training was partially enjoined by a federal court before President Biden fully rescinded it. There were also successful challenges to a number of President Biden’s executive orders during his term. Those actions might provide potential avenues for attacking EO 14173 and EO 14151, although this administration appears to have tried to draft EO 14173 and EO 14151 to address some of those challenges.

What constitutes an “illegal” DEI program or policy?

EO 14173 does not define what constitutes a “DEI” program or what this administration believes may be an “illegal” DEI program or policy. EO 14173 indicates that “preferences” and “workforce balancing” based on race, gender, and other protected characteristics are unlawful. It is unclear whether the Trump administration will issue guidance to clarify EO 14173.

Importantly, EO 14173 does not change the law on DEI programs. If a DEI program was lawful under federal antidiscrimination laws before EO 14173, it remains lawful afterwards. Even before EO 14173, preferences, quotas, or set aside programs based on race, gender, or other protected characteristics violated federal antidiscrimination law except in very limited contexts, such as remedial programs like voluntary affirmative action plans that were created in accordance with U.S. Supreme Court precedent.

EO 14173, however, increases the risk profile for DEI programs. This administration will likely take a broad view of which DEI programs it believes are illegal. What this administration has done at federal agencies to eliminate essentially all DEI programs may offer clues as to what DEI programs the Trump administration might target in the private sector. For example, a February 5, 2025 OPM memo provides the following:

• DEI initiatives are unlawful if they take “action motivated, in whole or in part, by protected characteristics,” even if a protected characteristic is not the “sole or exclusive reason for an agency’s action.”
• “[D]iverse slate policies” that include diverse hiring panels and candidate pools are unlawful.
• “ERGs that promote unlawful 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” are not allowed, but agency heads have discretion to continue “affinity group lunches, engage in mentorship programs, and otherwise gather for social and cultural events” as long as such events are consistent with EO 14173 and attendance at such events is not restricted by any protected characteristic or attendees are not segregated by protected characteristic.
• “[E]liminate 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.
• “[A]gencies should focus personnel efforts on rewarding individual excellence.”

Should I stop all DEI programs?

No. EO 14173 does not require companies to stop lawful DEI programs. Many DEI programs remain lawful under existing federal antidiscrimination laws, including mentorship/fellowship/internship programs that do not use race, gender, or other protected characteristics and employee resource groups that are open to all. Companies also must continue to comply with antidiscrimination laws at the federal and state level, so they should continue to review their policies and practices for bias or discriminatory barriers.

Companies should avoid eliminating certain anti-bias DEI programs or rolling back their DEI programs too far because it could create other legal and business risks. For example, removing DEI programs targeted at eliminating bias (e.g., pay equity studies, reviewing hires and promotions for potential bias, etc.) could increase risk of traditional discrimination claims.

That being said, given increased risk to corporate DEI programs, as discussed further below, companies should audit their DEI programs under attorney-client privilege for potential risks and modify them in accordance with their risk tolerances and preferences while continuing to protect corporate values for belonging and combatting bias.

What DEI programs are most prone to lawsuits and investigations?

Although it is unclear which DEI programs or policies this administration may target, the following DEI programs have been more prone to challenges by anti-DEI activists and should be reviewed carefully for risks, given the current environment:

• Internships/fellowships/mentoring programs that are exclusive to or targeted towards certain genders, races, or other protected characteristics;
• Employee resource or affinity groups that are only open to certain races, genders, or other protected characteristics;
• DEI aspirational targets or goals based on race, gender, or other protected characteristics;
• Tying director, officer, or manager compensation or performance reviews to achieving certain DEI objectives or goals;
• Diverse slate hiring or promotion practices;
• Requiring a certain number of board members to be of a certain gender or race;
• Supplier diversity programs that use race or other protected characteristics in any manner to select suppliers or give discounts, stipends, or other advantages to certain suppliers based in whole or in part on race or other protected demographics;
• Offering products for free or at discounts to certain individuals based on race or other protected characteristics; and
• Grants, funding, or investments that use race or other protected characteristics.

Should I stop all affirmative action plans?

No. Although affirmative action plans for females and minorities under EO 11246 are no longer required, federal contractors and subcontractors must continue to comply with their affirmative action, antidiscrimination, and accommodation obligations for protected veterans under the Vietnam Era Veterans Readjustment Assistance Act (“VEVRAA”) and individuals with disabilities under Section 503 of the Rehabilitation Act (“Section 503”). In addition, companies that hold state and local contracts with affirmative action requirements must continue to comply with those requirements.

EO 14173 permits contractors to continue their affirmative action plans for females and minorities under EO 11246 until April 20, 2025. Although EO 14173 does not expressly prohibit contractors from voluntarily continuing practices similar to affirmative action plans for females and minorities after April 20, 2025, continuing such efforts could create risk and should be carefully considered with experienced counsel. Technically, affirmative action plans under EO 11246 already should have complied with federal antidiscrimination laws, which expressly prohibited preferences, quotas, or set asides based on race or gender. However, as discussed above, this administration may take a broader view of what DEI programs are unlawful.

Although contractors will no longer be required to create affirmative action plans for females and minorities under EO 11246, many federal contracts and subcontracts continue to have contractual requirements to comply with EO 11246. As a practical matter, EO 14173 and this administration have stopped all enforcement of EO 11246, so contractors will not be audited by OFCCP and will likely not experience any other governmental enforcement actions for not complying with EO 11246. The General Service Administration also issued a memorandum on February 16, 2025 approving a Class Deviation to remove all FAR clauses related to EO 11246 and stating that “all uses of the term ‘gender identity’ are not to be recognized or used prospectively by Federal contractors.” 

My company received a stop work order on our federal contract/grant because it was allegedly DEI-related. What should I do?

As discussed in greater detail in our latest client alert, you should carefully evaluate both the terms and standard clauses concerning the processes for suspension, stop work, and terminations, which can vary across individual agreements. Depending on those processes and associated requirements, in general, you should review and confirm the scope of the stop work order and any other uncertainties, stop all covered work and direct any subcontractors to do the same, and then follow the remaining steps outlined in our client alert.

When does my company need to comply with the new certification and FCA requirements?

EO 14173 requires federal agencies to include the certification requirements in all federal contracts and grants. The timing of that occurring is unclear, although some federal agencies have told federal contractors that the certification requirements under EO 14173 must be in all federal contracts by April 1, 2025.

To date, the government has not issued an official contract clause. Typically, the Federal Acquisition Regulation Council (the “FAR Council”) is responsible for proposing and ultimately issuing (after a notice and comment period) FAR contract clauses to be included in federal contracts to implement new regulations and executive orders. That process usually takes months, but we have seen situations where the government moves quickly to implement a new contract clause, such as with the COVID-19 executive order for federal contractors. There, the government issued to all agencies a FAR deviation clause to be added to federal procurement contracts (and flow down to subcontractors) without going through the formal rulemaking process.

We are, however, already seeing examples of federal agencies asking contractors to comply with the new certification requirement, despite some agencies admitting they have not been provided any information “regarding what the certification looks like” yet and advising contractors to discuss the certification with their lawyers. These requests tend to vary by agency, but some contractors are being asked to modify their current federal contracts to include the certification, and some contractors are being asked to make certifications separate and apart from their federal contracts. As discussed further below, contractors should carefully consider whether and how to certify before the government issues an agency-wide contract clause under EO 14173.

Will the certification requirements only apply to new contracts and solicitations, or will the government modify existing contracts?

At this time, it is unclear how the government will proceed. Although agencies may try to incorporate the new certification requirements via bilateral contract modifications or when exercising option years (OYs), contractors might attempt to push back and assert the new requirements are cardinal changes and/or unlawful. To the extent the contractor does not agree to a bilateral modification or OY extension that incorporates a new contract clause implementing this Order, the government could likely either terminate the contract for convenience or, potentially, for default (which could place the contractor on the hook for reprocurement costs). Whether the government could rightly terminate for default is murky; the government most likely can if the clause merely enforces existing legal obligations, but it is less defensible if the clause imposes new requirements or obligations outside the scope of the original contract, which the new certification requirements in EO 14173 arguably do. The legality of a termination for default could also be disputed at a Board of Contract Appeals or the U.S. Court of Federal Claims.

Will I need to flow-down the new certification requirements to subcontractors?

EO 14173 does not expressly address flow-downs. We would expect the certification language to include a flow-down requirement, however, since EO 14173 repeatedly makes clear that the government intends to hold contractors and subcontractors responsible for any violations of EO 14173 and applicable law.

Can I reject the certification requirement from the government or my customer?

EO 14173 appears to contemplate that a new contract clause will be created for this certification requirement. As discussed above, however, some federal agencies are pressuring contractors to enter those certifications now, putting contractors in difficult situations.

We have also seen examples of prime contractors or upper-tier subcontractors requesting contractors to certify these requirements. Contractors have more reason for pushing back on those requests since EO 14173 does not expressly mandate inclusion of those requirements in subcontracts. These requests also put contractors in difficult positions with their customers, particularly if their contracts allow the prime or upper-tier subcontractors to terminate the subcontract for convenience.

Before entering into unofficial or ad-hoc certifications, contractors should consider waiting to see if this administration issues an official contract clause for EO 14173 or further guidance about the scope of the certifications. Many unanswered questions about the certification remain that this administration might clarify or confirm before an official certification is required. In addition, if the pending legal challenge to EO 14173 is successful and occurs before the certification is mandated, it could obviate the need to certify.

What are the risks for failing to comply with the new certification and FCA requirements?

As discussed in our prior alert, the new certification requirements raise potential FCA liabilities for any federal contractor or grantee that falsely certifies that it does not operate any “illegal” DEI programs or does not comply with federal antidiscrimination laws. The certification will also raise the risk of employees or competitors filing qui tam actions based on perceived unlawful DEI practices. Disgruntled employees or applicants might also claim they were rejected (e.g., not hired, promoted, etc.) due to some type of unlawful employment practice that they claim is “DEI,” which could create whistleblower protections under the FCA and, for certain contracts, the National Defense Authorization Act. These actions could lead to costly investigations, exposure to liability for treble damages and penalties, potential suspension or debarment, and possible litigation costs. This risk is amplified because “DEI” is undefined and this administration is appearing to take a broad view of what it believes are “illegal” DEI programs and policies.

The new certification requirement, once implemented, could also make it significantly easier to prosecute FCA actions based on noncompliance with federal antidiscrimination laws.  This is because any noncompliance with federal antidiscrimination law could facially contradict the certification, which may make it easier to establish the falsity element of FCA liability.  On the other hand, if the government does not clarify the certification language in EO 14173 about what is a “DEI” program or what the government believes is “illegal,” it may be harder to establish the scienter element of an FCA claim.  Similarly, contractors will have to certify that compliance with federal antidiscrimination law is material for receiving government payments, which may make it more difficult to challenge the materiality element for FCA liability.  That said, the U.S. Supreme Court’s decision in Universal Health Servs. v. United States ex rel. Escobar holds that materiality is “demanding,” and is not automatically met merely because the federal government says a contract provision is material.

Does EO 14168 prohibit private companies from continuing to recognize and protect gender identity for employees?

No.  EO 14168 does not change the law yet concerning gender identity as a protected class under Title VII or under any state laws that protect gender identity.  In Bostock v. Clayton, the U.S. Supreme Court found that Title VII prohibited employers from discriminating against employees and applicants on the basis of their gender identity.  EO 14168 does not change Bostock, but it does require proposed legislation that would remove gender identity as a protected class under Title VII and limits other federal actions that expanded Bostock to other laws and areas.  For example, EO 14168 rescinds the EEOC’s Workplace Harassment Guidance, which found that Title VII prohibited harassment based on gender identity, including repeated misuse of employee’s preferred pronouns (e.g., on emails) and not allowing employees to use the restroom that corresponded to their gender identity.  Although the federal law may change in this area, a number of state laws prohibit gender identity harassment and discrimination similar to the EEOC’s guidance.

Companies should continue to monitor the law in this area since it may change at the federal level and in certain states or localities.

I received a request from the government to not allow employees to use their preferred pronouns on emails. What should I do?

The government has banned use of pronouns on .gov email addresses, and it is requiring federal contractors who have employees with .gov email address to comply. Because the government generally has the right to control its own equipment and email systems, contractors will likely have to comply with those requests. Companies, however, should consider making sure all employees with government email addresses and working at government sites feel supported and understand that the company prohibits discrimination and harassment based on gender identity.

This also does not mean that companies need to or should prohibit employees from using their preferred pronouns on company email addresses. So far, the government orders that we have seen have been limited to .gov email addresses. There is nothing currently legally prohibiting companies from allowing employees to use their preferred pronouns in their own email systems, although some states have passed laws prohibiting certain employers from using pronouns (e.g., FL for K-12 schools and contractors). As discussed above, some jurisdictions, like New York, find that refusing to use an employee’s preferred pronouns violates their antidiscrimination protections.

Accordingly, mandating that employees cannot use their preferred pronouns on company email addresses could create risks. Federal contractors, however, should continue to monitor developments in this area since the federal government may try to issue restrictions for federal contractors in this area.

In the meantime, companies should consider making pronoun-use optional so employees do not have to use pronouns if they prefer not to use them, particularly if they claim they have religious beliefs against doing so. It is better to emphasize treating all employees with respect and dignity. Companies should also promptly address complaints about pronoun-use (whether about misuse of pronouns or pronoun usage or offending someone’s religious beliefs) to mitigate the risk of claims.

What should I do if an employee claims that my DEI training or programs are unlawful?

Given the heightened risks of whistleblower and retaliation complaints, companies should promptly and appropriately address any complaints about their DEI training or programs being unlawful or offending an employee’s religious beliefs. Although a company’s response may vary based on the circumstances, companies should, at a minimum, document the employee’s concerns, promptly investigate those concerns to ensure DEI initiatives and trainings are compliant with antidiscrimination laws, make changes to programs or trainings if warranted, and address and close out concerns with the complainant. When meeting with the complainant, deemphasize politics and emphasize the benefits and intent of DEI programs and training and how the company strives to provide a workplace where all employees feel included and valued. Companies should also be mindful to assess and mitigate potential retaliation risks when employees opposing DEI practices are disciplined or terminated in the weeks or months after such opposition.

What should I do now to prepare?

As discussed further in our prior alert and in our webinar, companies should consider taking the following actions.

• Conduct Privileged DEI Risk Audit: Because this administration will likely take a broad view of what DEI programs are “illegal,” it is critical now to inventory and audit existing and proposed DEI programs and policies under attorney-client privilege. This includes review all public-facing DEI communications and disclosures (e.g., SEC filings, websites, recruiting materials, and messaging to employees) to ensure that they are vetted appropriately based on the company’s risk tolerances and preferences. At the same time, companies that eliminate DEI programs or excessively curtail them can create legal, business, and reputational risks. The outcome of this audit can be used to inform companies’ DEI strategies moving forward based on risk tolerances and preferences. This audit is even more critical for federal contractors so they can certify the lawfulness of their DEI programs to the government when the new contractual certification requirements are added to their federal contracts.
  
  Our DEI Strategy + Defense Task Force helps companies navigate these difficult issues through our privileged DEI risk audits. By proactively reviewing our clients’ DEI programs, policies, and communications, we provide clients with actionable intelligence to help appropriately mitigate risk while upholding their corporate values and reputations. Our DEI risk assessments help companies:
• Assess their DEI and anti-bias programs, policies, and communications for actual and potential risks, considering the current political environment.
• Develop strategies and practical recommendations to appropriately mitigate risks associated with DEI programs and communications while upholding corporate values and objectives.
• Provide federal contractors and grantees with legal assessments of their DEI programs to support their certifications that they do not operate any “illegal” DEI programs that could help defend FCA and qui tam whistleblower claims.
• Defend shareholder derivative actions by bolstering officers’ and directors’ business judgment that the company’s DEI programs are in shareholders’ interests.

• Train Managers on Handling Employee DEI Opposition: Arm managers and human resources with guidance on how to address employee complaints about DEI programs, policies, and communications. Review policies and practices for responding to religious accommodations for certain DEI practices.
• Document Employment Decisions Carefully: Because employment decisions are likely to be the subject and focus of increased scrutiny and litigation, including FCA qui tam actions, review procedures for documenting employment decisions to ensure they are sufficient to document the legitimate business reasons for those decisions, especially to show decisions were based on merit without consideration of race or other protected characteristics.
• Review Investigation Protocols: Because proper and timely investigations could provide critical defenses to whistleblower claims related to EO 14173, review policies and practices for investigating complaints and concerns about DEI programs and discrimination.
• Don’t Overcorrect: Avoid rolling back DEI programs too far because that could invite more legal and business risks, including increasing risk of traditional discrimination claims or hindering recruitment and retention efforts.