Dive Brief:
- The White House published an executive order Tuesday that directs the heads of agencies, in cooperation with the attorney general, to submit a report by May 21 with recommendations to “encourage the private sector to end illegal discrimination and preferences, including DEI.”
- Per the order, the report should include key sectors of concern within each agency’s jurisdiction; the “most egregious and discriminatory DEI practitioners in each sector of concern”; steps or measures to deter DEI, including “up to nine potential civil compliance investigations”; potentially appropriate litigation approaches; and potential regulatory action or sub-regulatory guidance.
- The order also immediately revoked a number of Biden administration executive orders that apply to DEI in the government and among federal contractors and subcontractors.
Dive Insight:
Trump’s executive order — titled “Ending illegal discrimination and restoring merit-based opportunity” — expands his initial focus on federal diversity initiatives to the private sector and more, signaling to the business community that DEI initiatives will be under close examination by the new administration.
Attorneys and courts have been carefully considering the legality of DEI programs for several years, as such programs exploded in both size and scope following the racial reckoning of 2020. Generally speaking, DEI has not been found to run afoul of civil rights law, the focus of Trump’s executive order. One lawyer told HR Dive in 2022 that diversity initiatives that don’t involve employment decisions, such as encouraging a wide range of applicants to apply, don’t create much potential for legal action, for example.
But other practices may be more questionable. In a December letter from the U.S. Department of Labor’s Office of Federal Contract Compliance Programs to conservative advocacy group America First Legal Foundation regarding Southwest Airlines’ DEI practices, the OFCCP acknowledged its regulations did not permit “quotas, preferences, or set asides,” for example. The agency did not say it found the airline to be in violation of these policies.
Whether and how the Trump administration may widen the interpretation of legality with respect to DEI practices remains to be seen. America First Legal has taken an aggressive approach to corporate DEI in the past years — and its founder Stephen Miller is reportedly close to the administration — perhaps forecasting an onslaught of investigative activity and legal action. Many AFL cases remain pending, while at least one was dismissed by a federal judge.
Still, employers may want to review their DEI approach with a lawyer to consider all potential claims and ensure compliance with existing civil rights laws, attorneys have previously recommended.