New England Biz Law Update
Several organizations banded together to file a federal lawsuit challenging President Donald Trump’s recent executive orders aimed at eliminating “illegal” diversity, equity, inclusion, and accessibility (DEIA) programs, marking the first major legal challenge to the administration’s new DEI policies.
Filed on February 3, 2025, in the U.S. District Court for the District of Maryland, the lawsuit alleges that two executive orders issued by Trump in January 2025 are unconstitutional and create uncertainty that could chill legitimate DEI efforts.
Plaintiffs: The plaintiffs include the National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore.
Executive Orders at issue: The lawsuit specifically challenges Executive Order 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing” (January 20, 2025) and Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (January 21).
These orders direct federal agencies to terminate DEI programs, offices, and initiatives while also implementing measures to discourage DEI efforts in the private sector. Failure to comply with the orders could subject entities “to civil investigation, civil enforcement, claw back of funding, or other enforcement actions by the federal government.”
Rationale: According to the lawsuit, the executive orders violate both the First and Fifth Amendments by suppressing free speech on political matters and failing to provide clear guidance on prohibited activities. The plaintiffs argue that the orders’ vague language leaves potential targets uncertain about what speech or actions might trigger enforcement, effectively giving executive branch officials broad discretion in implementation.
“The undefined terms leave potential targets with no anchor as to what speech or actions the order encompasses,” the lawsuit states, arguing that this vagueness gives officials “carte blanche authority to implement the order discriminatorily.”
The lawsuit seeks both preliminary and permanent injunctions to block the executive orders.
Federal action: In response to the executive orders, federal agencies have begun implementation efforts. On February 5, the Office of Personnel Management (OPM) issued guidance directing agencies to eliminate DEI offices and “special emphasis programs.” The guidance specifically identified “diverse slate” policies — which mandate specific compositions for hiring panels or candidate pools—as examples of practices now considered unlawful discrimination.
Regarding employee resource groups (ERGs), the guidance required dismantling them to the extent that they promote unlawful discrimination. However, affinity group events could continue, for social and cultural purposes, as long as events were not restricted to people with a particular characteristic.
The same day, Attorney General Pamela Bondi issued memoranda ordering the Department of Justice (DOJ) to investigate and penalize “illegal DEI preferences” in both the public and private sectors.
The DOJ memos notably carved out exceptions for certain activities, stating that the prohibitions do not extend to “educational, cultural, or historical observances—such as Black History Month, International Holocaust Remembrance Day, or similar events—that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.”
Advice for employers: If the January 21 order stands, it will revoke a longstanding affirmative action requirement in place since 1965. That order, issued under Lyndon B. Johnson, required federal contractors to file an annual report with a demographic breakdown of their workforce and make a good faith effort to provide equal employment opportunities. (It did not require employers to institute quotas or bypass merit-based hiring processes.)
Employers, particularly federal contractors, should take several key steps in response to these developments:
- Continue required compliance filings, including EEO-1 and VETS-4212 filings, where applicable.
- Note that veteran and disability affirmative action requirements under VEVRAA and Section 503 of the Rehabilitation Act remain in effect.
- Review current DEIA programs with legal counsel to ensure compliance with evolving requirements.
- Monitor ongoing legal challenges and agency guidance, as implementation details are expected to emerge over the next 90 days.
- Maintain existing anti-discrimination and anti-harassment policies, as core civil rights protections remain unchanged.
For federal contractors specifically, the orders allow a 90-day transition period to adjust to the new requirements. However, they must now certify that they do not operate programs that violate federal anti-discrimination laws.
