PRIVATE EMPLOYERS AND TRUMP’S EXECUTIVE ORDER ON DEI:

Kaitlyn Smearcheck, Esq., ksmearcheck@tuckerlaw.com, (717) 221-7963

What does this mean? What do we do now?

On President Trump’s first full day back in the Oval Office, January 21, 2025, he issued an executive order targeting diversity, equity, and inclusion initiatives and diversity, equity, inclusion, and accessibility programs (collectively, “DEI Programs”)[1].

What are DEI programs?

Diversity, equity, and inclusion programs are generally programs in which efforts are undertaken to help people of diverse socioeconomic backgrounds, races, and genders. They can take on many different forms. One form is that these programs increase these individuals’ access to jobs in the workplace.

The Origins of DEI

DEI efforts date all the way back to the enactment of the Civil Rights Act of 1964. This Act prohibits, among other things, discrimination in employment based on protected classes, such race, religion, sex, color, and national origin. In 1965, President Lyndon B. Johnson

(“President Johnson”) issued Executive Order 11246 which barred discrimination in federal employment and required federal contractors to implement and maintain affirmative action programs. Since then, public and private workforces have implemented their own DEI efforts, especially with the help and guidance that has transcended through the decades by way of executive orders, laws, and court decisions. 

Trump’s Executive Order on DEI

Trump’s Executive Order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (“Trump’s Executive Order on DEI”) sets out a policy directing federal agencies “to terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements,” while encouraging private employers “to promote individual initiative, excellence, and hard work.[2]”

Section 3 of Trump’s Executive Order on DEI revoked Executive Order 11246 of September 24, 1965 (Equal Employment Opportunity), summarized above, along with other Executive Orders and executive actions that were issued to promote diversity within the federal government and protect federal employees from discrimination[3], such as:

• Executive Order 12898 of February 11, 1994 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations);

•  Executive Order 13583 of August 18, 2011 (Establishing a Coordinated Government-wide Initiative to Promote Diversity and Inclusion in the Federal Workforce);

•  Executive Order 13672 of July 21, 2014 (Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity); and

• The Presidential Memorandum of October 5, 2016 (Promoting Diversity and Inclusion in the National Security Workforce).

Additionally, Section 3 of Trump’s Executive Order on DEI (“Section 3”) prohibits the Office of Federal Contract Compliance Programs (“OFCCP”) from promoting diversity. Section 3 further requires all federal government contractors and grant recipients to certify that it does not operate any programs promoting DEI that violate any applicable federal anti-discrimination laws. Lastly, Section 3 directs the Office of Management and Budget (“OMB”) to excise references to DEI principles from all federal acquisition, contracting, grants, and financial assistance procedures, and to terminate all diversity and equity programs and activities.

The Effect of Trump’s Executive Order on Private Employers?

Section 4 of Trump’s Executive Order on DEI applies to private employers[4]. Section 4 of Trump’s Executive Order on DEI (“Section 4”) requires the attorney general and all agency heads to prepare and submit a report that the Trump Administration will use to establish new “civil rights” policies against corporate DEI programs (“Report”).

In this Report, the attorney general and agency heads must advise President Trump of certain measures that would encourage the private sector to “end illegal discrimination and preferences, including DEI.” The attorney general and agency heads are also to prepare a proposed strategic enforcement plan in the Report. According to Section 4, this strategic enforcement plan must identify the following data points:

• key sectors of concern within each agency’s jurisdiction;
• the “most egregious and discriminatory DEI practitioners” in each of those sectors;
• 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; and
• potential regulatory action and sub-regulatory guidance.

This Report is to be submitted within 120 days of the issuance of Trump’s Executive Order on DEI.

Additionally, as part of this plan, the head of every agency is 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 or more, state and local bar and medical associations, and institutions of higher education with endowments over $1 billion.

What Should Private Employers Do Now?

1. Wait and See

This Report isn’t due until late May 2025. After the Report has been submitted, it is anticipated that more meaningful information will be released from the Trump Administration on how it intends to end DEI programs. From there, we will be in a better position to see and determine the impact it will have on private employers and whether there will be any other yet-to-come developments in relation to Trump’s Executive Order on DEI.

• Review Your DEI Initiatives and Work with Legal Counsel

Trump’s Executive Order on DEI does not have the power to change civil rights laws, such as the Civil Rights Act of 1964. Nor does this Executive Order have the power to illegalize non-discriminatory DEI Programs. Do note that Trump’s Executive Order on DEI does not force private employers to end their current DEI efforts. Rather, this Executive Order was issued to encourage private employers to end their current DEI efforts and put them on notice of his administration’s stance on DEI Programs. While we await the debut of the federal enforcement plan, now would be an ideal time for private employers to review the effectiveness of their DEI Programs and work with counsel to anticipate and plan for any evolving requirements.

For guidance on how this executive order may impact your business, contact Kaitlyn Smearcheck at (717) 221-7963 or ksmearcheck@tuckerlaw.com.

[1] https://www.whitehouse.gov/presidential-actions/2025/01/ending-illegal-discrimination-and-restoring-merit-based-opportunity/.

[2] Section 2 of Trump’s Executive Order on DEI.

[3] Section 3 of Trump’s Executive Order on DEI.

[4] Section 4 of Trump’s Executive Order on DEI.What does this mean? What do we do now?