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What is DEI?
What Is “Illegal DEI” Under the 2025 Executive Orders?
In early 2025, President Trump issued Executive Orders (E.O.) 14151, 14173, and 14230, which aim to, among other things, eliminate “illegal” and “discriminatory” DEI from the workplaces of the federal government, federal contractors, federal grant recipients, and private-sector employers. Multiple lawsuits have been filed challenging various provisions of these executive orders.
The E.O.s do not specifically define “illegal DEI,” but they provide some indications about what the Trump administration may be focused on in investigating and bringing enforcement actions pursuant to E.O. 14173 against private-sector employers, federal contractors, and federal grantees with regard to their DEI policies and programs.
What does E.O. 14151 say about what the Trump administration may consider “illegal DEI?”
E.O. 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing” states that the federal government shall “terminat[e] . . . all discriminatory programs, including illegal DEI and ‘diversity, equity, inclusion, and accessibility’ (DEIA) mandates, policies, programs, preferences, and activities in the [f]ederal [g]overnment, under whatever name they appear.”
Within the federal government, E.O. 14151 aims to eliminate the following, as permitted by law:
- All DEI, DEIA, and “environmental justice’ offices and positions,” including Chief Diversity Officer positions;
- Equity action plans;
- Equity actions, initiatives, or programs;
- Equity-related grants or contracts; and
- DEI or DEIA performance requirements for employees, contractors, or grantees.
The E.O. highlights the “Equity Action Plans” that the federal agencies were directed to create under President Biden’s E.O. 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government” as an example of an “illegal” DEI “discrimination program.”
The E.O. directs federal agency heads to review items related to DEI, DEIA, or environmental justice” within the federal agencies including:
- Positions; Committees; Programs; Services; Activities; Budgets; Expenditures; Trainings; Training materials; Employment practices; and Contracts (including set-asides).
DEI policies within the federal agencies are to be replaced with a general policy of “equal dignity and respect.”
What does E.O. 14173 say about what the Trump administration may consider “illegal DEI?”
E.O. 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” states that “illegal DEI and DEIA policies” do the following:
- Violate the text and spirit of longstanding federal civil rights laws;
- “Prioritizing how people were born instead of what they are capable of doing;”
- Give preferential treatment based on “identity” instead of rewarding the merit, hard work, excellence, aptitude, and achievement of individuals when selecting people for jobs and services;
- Stigmatize, demean, or exclude individuals from employment-related opportunities because of their race or sex; and
- Involve illegal preferences that violate federal anti-discrimination law.
The E.O. directs the Office of Federal Contract Compliance Programs (OFCCP) to immediately cease:
- Promoting “diversity”
- Requiring federal contractors and sub-contractors to take “affirmative action;” and
- Allowing or encouraging federal contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.
What does E.O. 14230 say about what the Trump administration may consider “illegal DEI?”
E.O. 14230, “Addressing Risks From Perkins Coie LLP” states that engaging in race and sex discrimination, including by using quotas, while “hiding the nature of such discrimination through deceiving language” violates public trust and the principle of equality.
The E.O. directs the Equal Employment Opportunity Commission and Attorney General to investigate law large firms for compliance with laws prohibiting race and sex discrimination, including whether such firms:
- Reserve certain positions, such as summer associate spots, for individuals of preferred races;
- Promote individuals on a discriminatory basis;
- Permit client access on a discriminatory basis; or
- Provide access to events, trainings, or travel on a discriminatory basis.
What are the takeaways for employers?
Private-sector employers and federal contractors, sub-contractors, and grantees may risk a federal investigation or enforcement action under E.O. 14173 by doing the following in name or in spirit:
- Engaging in workforce balancing based on race, color, sex, sexual preference, religion, or national origin;
- Reserving exclusive career opportunities or slots for members of a particular race, sex, or other protected characteristic;
- Giving preferential treatment based on sex, race, or identity when selecting people for jobs or services;
- Excluding people from jobs, committees, groups, organizations, or any employment activities based on their sex, race or other protected characteristic;
- Implementing sex, race, or identity-based quotas or goals in selecting people for jobs;
- Implementing sex, race, or identity-based set-asides in selecting candidates for interviews;
- Giving opportunities for professional development such access to clients, events, training, or travel to individuals based on their race, sex, or other protected characteristic and excluding others from such opportunities based on their own race, sex, or other protected characteristic;
- Promoting diversity, equity, inclusion, and/or accessibility, including in training, training materials, and on a company website;
- Having positions or committees dedicated or related to DEI, diversity, equity, etc.;
- Having equity plans or initiatives; or
- Including DEI-related factors in performance reviews or promotion decisions.
While the Trump administration appears to be particularly focused on race and sex, employers should be aware that just because a class protected by federal anti-discrimination law was not mentioned in a particular context within the E.O.s does not necessarily mean that the Trump administration will not investigate or bring an enforcement action regarding an employment-related preference or exclusion based on membership in that class. Under federal anti-discrimination law, employers are generally prohibited from favoring or disfavoring employees and job applicants with respect to the terms, conditions, and privileges of employment because of their membership in any protected class, except where otherwise provided for by federal law.
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