DEI Under Siege: A Guide to the Trump Executive Orders | Insights

Key Points

The new administration’s effort to eliminate most DEI programs extends beyond the federal government to major corporations, foundations, non-profits, professional organizations and educational institutions.
Aggressive enforcement appears likely, as government departments have been instructed to identify nine potential private sector targets for enforcement actions.
Any recipient of government funding will be required to sign documents opening itself up to criminal prosecution if it maintains unlawful DEI programs.
A recent Department of Justice memo did allow, however, that “educational, cultural, or historical observances ... that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination” are not prohibited.

In the first few days of the second Trump Administration, the President signed three executive orders (EOs) seeking to end diversity, equity and inclusion (DEI) programs in the public and private sectors, declaring DEI programs “illegal and immoral.”

The orders apply, first, to federal government DEI programs and policies, and to federal contractors and grant recipients, but the new administration has served notice that it plans to target large private sector organizations more generally, including major corporations, foundations, non-profits, professional organizations and educational institutions. One of the orders specifically instructs the attorney general to require each federal agency to identify nine large potential enforcement targets.

What follows is a primer on the law, the three orders and a related policy statement issued by the new attorney general.

The Law Before the Inauguration

DEI programs were already under increased scrutiny before President Trump was reelected following two 2023 Supreme Court decisions involving admissions programs at Harvard College and the University of North Carolina, cases referred to together as SFFA for the shorthand of the plaintiff. The Supreme Court held that race could no longer be considered as a plus-factor in admissions, finding that that violates the Equal Protection Clause of the 14th Amendment.

Though the court’s holding applied only to higher education admissions, plaintiffs challenging DEI programs in the employment context under the Equal Protection Clause and Title VI of the Civil Rights Act have relied on SFFA.

In addition to the impact of the SFFA cases, a 2024 Supreme Court case (Muldrow) lowered the degree of harm an employee must show to maintain a discrimination claim under Title VII of the Civil Rights Act. Specifically, an employee need only show “some” harm with respect to a term or condition of employment rather than “significant” harm.

The Trump Executive Orders

1. Termination of Federal DEI Programs Generally

The first EO (14151), titled “Ending Radical and Wasteful Government DEI Programs and Preferencing,” requires the termination of all “discriminatory programs, including illegal [DEI] and [DEIA] mandates, policies, programs, preferences and activities in the Federal Government, under whatever name they appear.” It requires that federal agencies, departments or commission heads terminate all (i) DEI offices and positions, (ii) “equity” plans, actions, initiatives or programs and “equity-related” grants or contracts, and (iii) DEI or DEIA “performance requirements for employees, contractors or grantees.”

2. Termination of Gender Identity Policies

The second order (14168), “Defending Women from Gender Ideology Extremism,” defines “sex” as an individual’s “immutable biological classification as either male or female,” removing any concept of “gender identity.”

This order directs agencies to remove all statements, policies, regulations or other documents or forms of communications that “inculcate gender ideology” and prohibits use of federal funds to promote gender ideology. The order also instructs the attorney general to issue guidance to (i) clarify that Title VII does not require gender identity-based access to single-sex spaces and (ii) ensure the “freedom to express the binary nature of sex” and right to single-sex spaces. Agencies with enforcement responsibilities are instructed to prioritize investigations and litigation to enforce the EO.

3. Deterrence of Private Sector DEI Policies and Programs

The third EO (14173), “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” requires executive departments and agencies to terminate “all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders and requirements.”

In a major change, the order rescinds Executive Order 11246, issued in 1965 by President Johnson, which required federal contractors to develop and implement affirmative action plans to identify and address underrepresentation based on sex or race. Under President Trump’s EO 14173, any receipt of federal funding will now require the recipient to agree that its compliance with federal anti-discrimination laws is material to the government’s payment decisions under the False Claims Act (i.e., opening up the recipient to criminal prosecution under that law if it violates federal anti-discrimination laws) and to certify that the recipient does not operate any illegal DEI programs.

The order also requires the heads of agencies to take action to encourage the private sector to end any illegal DEI preferences, mandates, policies, programs or activities. Specifically, the order directs the attorney general to submit a proposed strategic enforcement plan, which, among other things, shall identify:

“[T] he most egregious and discriminatory DEI practitioners in each sector of concern.”
Strategies for ending “illegal DEI discrimination and preferences.”
A plan with “specific steps and measures to deter DEI programs or principles.”

Under that third mandate, the attorney general is instructed to require each government agency to:

“identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars.”

4. Department of Justice Enforcement Policy

Following up on EO 14173, on February 5, 2025, Attorney General Pam Bondi issued a memorandum to all Department of Justice (DOJ) employees providing that the DOJ’s Civil Rights Division “will investigate, eliminate and penalize illegal DEI and DEIA preferences, mandates, policies, programs and activities in the private sector and in education institutions that receive federal funds.”

The memorandum instructs the Civil Rights Division and the Office of Legal Policy to submit a report including proposals for criminal investigations and up to nine civil compliance investigations, and potential litigation activities in support of the new policies.

A footnote, however, provides an important qualification that creates some room for some private DEI programs: It states that the memorandum “encompasses programs, initiatives, or policies that discriminate, exclude, or divide individuals based on race and sex,” but that the law “does not prohibit educational, cultural, or historical observances ... that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.”

Conclusion

Against this backdrop, with the prospect of high-profile civil and possible criminal enforcement actions, employers should carefully review their DEI programs and initiatives, along with their public filings and statements about DEI, and corporate governance documents, including board committee charters.

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