BlogLine

New administration’s anti-DEI initiatives and impact on employers

2/10/25

By: Chloe C. Zidian

On January 21, 2025, amidst a flurry of others, the new president signed an Executive Order abolishing federal contractors’ affirmative action requirements, reducing other DEI programs for federal employees, and discouraging DEI efforts in the private sector. The Order is entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” Here, the phrase “illegal discrimination” refers to DEI efforts and initiatives.

Per the Order, federal agencies will demand that any federal contractor include in their contracts a certification that the contractor is compliant with all applicable federal anti-discrimination laws and does not otherwise engage in any DEI efforts. The order provides a 90-day grace period, until April 21, 2025, for contractors to comply with these new requirements.

This order revokes prior executive orders implemented over the last 60 years aimed at affirmative action and similar programs, including specifically Executive Order 11246, effectuated on September 24, 1965 (Equal Employment Opportunity). While the Equal Employment Opportunity Act of 1972, 42 U.S.C. §§ 2000e, et seq., remains in effect, by this executive order, the administration is also “Encouraging the Private Sector to End Illegal DEI Discrimination and Preferences” in order to “advance . . . the policy of individual initiative, excellence, and hard work.” To this end, on or before April 21, 2025, federal agency heads, with the assistance of the Attorney General, are directed to further inform and advise the president of their recommendations to further enforce Federal civil-rights laws and eliminate DEI programs and initiatives in the private sector. This report is to identify areas of concern, including particular employers or practitioners and set forth a plan or steps to deter these programs.

The Order further calls for the Attorney General and Secretary of Education to jointly issue guidance to state, local, and higher education agencies who receive federal funds, relating to their practices and compliance with the U.S. Supreme Court’s 2023 decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023). Consistent with the spirit of this Executive Order, the 2023 decision ended race-conscious admission programs, or affirmative action, at colleges and universities.

The Order does not apply to employment and contracting preferences for veterans, nor does it affect the Randolph-Shephard Act, 20 U.S.C. §§ 107, et seq., applicable to blind vendors’ priority access to certain facilities on government property, nor to the Rehabilitation Act of 1973, 29 U.S.C. §§ 701, et seq., which provides contracting preferences to persons with disabilities.

This order is just one of over 50 already implemented by the new administration, many of which ultimately bear on employers and their daily operations. What were once considered well-founded programs for inclusion in trainings, handbooks, and website advertisements may now pose substantial legal risks. As a result, it is critical for employers to examine their own policies and practices to ensure they are compliant with these emerging issues and trends. From a strategic standpoint, any such analysis should be completed in close coordination with trusted employment counsel to promote its efficacy and to preserve the confidentiality of those efforts and findings.

Freeman, Mathis & Gary, LLP lawyers stand ready to assist you in these and any other labor and employment needs nationwide. For more information, please contact Chloe C. Zidian at chloe.zidian@fmglaw.com or your local FMG attorney.