Trump’s Executive Order on DEI—What Should Employers Be Doing Now?

Executive Order

On January 21, 2025, President Trump signed an Executive Order “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” that seeks to root out “dangerous, demeaning, and immoral race-and sex-based preferences” that have been advanced in diversity, equity and inclusion (DEI) policies and initiatives. As part of this executive order, Trump revoked Executive Order (EO) 11246 of September 24, 1965 that prohibited federal contractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity or national origin and mandated affirmative action plans and compliance reporting by covered federal contractors.

The Executive Order directs the Office of Federal Contractor Compliance Programs (OFCCP), a division of the Department of Labor (DOL), to “immediately cease” (1) promoting diversity, (2) holding federal contractors responsible for fulfilling the “affirmative action” obligations imposed by EO 11246, and (3) allowing or encouraging federal contractors to engage in “workforce balancing” based on race, color, sex, sexual preference, religion or national origin. Now, federal agencies must insure that all federal contractors agree to comply with federal anti-discrimination laws and to certify that they do not operate any programs promoting DEI that violate the federal anti-discrimination laws. On Friday, January 24, the DOL announced that it was immediately ceasing all “investigative and enforcement activities” under EO 11246, including all pending cases, conciliation agreements, investigations, complaints and "any other enforcement-related or investigative activity." It is too soon to know what the OFCCP will continue to require as it complies with the Executive Order, but it seems very likely that requirements for affirmative action plans will be eliminated. There is a 90-day grace period that federal contractors may continue to comply with the regulatory scheme that was in effect prior to the Executive Order.

For those employers that are not federal contractors, the Executive Order instructs the heads of all federal agencies to take appropriate action to end illegal DEI discrimination and preferences in the private sector.

The EEOC Acting Chair: Andrea Lucas

The U.S. Equal Employment Opportunity Commission (EEOC) last week announced that President Trump has named Commissioner Andrea R. Lucas Acting Chair of the EEOC. Ms. Lucas in her statement stated that consistent with President Trump’s Executive Orders and policy priorities that her 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.”

Given these instructions and statements, it is possible that the EEOC may cease requiring employers to file EEO-1 reports, although no such statement has yet been made. The EEO-1 reporting requirements apply to all employers of a minimum of 100 employees, regardless of whether they are federal contractors, although lower thresholds apply to some federal contractors.

So Now What?

We are getting a lot of questions from employers as to what all these changes mean, especially if they have DEI policies or employee resource groups (ERGs). With the signaling by Ms. Lucas of her priorities at the EEOC, we anticipate that “reverse” discrimination claims will rise. “Reverse” discrimination is a term that is used to describe discrimination against members of a dominant or majority group. The United States Supreme Court is also set to hear whether “reverse” discrimination plaintiffs have a more demanding burden to prove a violation of the anti-discrimination laws, and based on the makeup of the current Supreme Court and priorities of this new Administration, it is likely that the more demanding burden will be struck down.

All of this is to say—we recommend employers that have policies and programs (especially in recruiting) that could be interpreted to give a preference to any group of employees on the basis of a protected category under the federal discrimination laws over other employees contact their employment attorney and seek counsel and advice regarding such programs.