On January 21, 2025, President Trump signed Executive Order 14173 “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” The Order declared that employer policies and practices that “use dangerous, demeaning and immoral race- and sex- based preferences under the guise of so called ‘diversity, equity, and inclusion’ (DEI) or ‘diversity, equity, inclusion, and accessibility’ (DEIA)” violate civil-rights law. The Order primarily applies to federal agencies under the Executive Branch’s authority; however, it also charges federal agencies to combat “illegal” DEI policies in the private sector.
On March 19, 2025, the Equal Employment Opportunity Commission (“EEOC”) issued its guidance on “illegal” DEI. The guidance, What to Do If You Experience Discrimination Related to DEI at Work, states “[u]nder Title VII, DEI policies, programs, or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated -in whole or in part- by an employee’s race, sex, or other protected characteristic.”
Disparate treatment such as hiring, firing, demotions, and other common “employment actions;” harassment; and retaliation are unlawful when motivated by race, sex, or other protected characteristics. Employers should be aware that an employee reasonably opposing DEI training may constitute protected activity, such that retaliation for such opposition would violate Title VII. Additionally, selection for interviews; placement on candidate slates; and exclusion from training, fellowships, and mentoring or sponsorship programs are unlawful if motivated by a protected characteristic.
Further, Title VII prohibits employers from limiting, segregating, and classifying employees based on their race, sex, or other protected characteristic. This may include limiting membership in workplace groups or separating employees based on race, sex, or other protected characteristic when administering DEI-related training or other training. Offering the same resources or programming to separate groups does not shield an employer from liability under Title VII.
On February 21, 2025, the United States District Court for the District of Maryland issued a nationwide preliminary injunction of many parts of the Order, including the enforcement provision. On March 14, 2025, the Fourth Circuit effectively reinstated the Order when it granted the Trump Administration’s application for stay pending appeal. The EEOC issued its guidance following this stay.
It is likely that there will be further guidance and legal challenges relating to the Order and the Trump Administration’s position on DEI policies and practices. Therefore, employers should remain aware of developments regarding the treatment of DEI policies and practices to ensure compliance with Title VII and all civil-rights laws.