Just days after his inauguration on January 20, 2025, President Trump wasted no time advancing his agenda by signing a flurry of Executive Orders (EOs), several of which focused on diversity, equity, and inclusion (DEI) and DEI and accessibility (DEIA); gender identity; and affirmative action. The EOs provide insight into the new administration’s priorities and reshape how employers must view and meet their obligations under Title VII and other federal laws to provide equal employment opportunities (EEO).

Executive Orders

On January 20, 2025, President Trump issued EO14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, which purports to defend women’s rights by ensuring federal agencies recognize only two sexes, female and male, and rejecting the concept of “gender ideology.” To further this policy, the EO defines “female” as “a person belonging, at conception, to the sex that produces the large reproductive cell[,]” and a “male” as “a person belonging, at conception, to the sex that produces the small reproductive cell.” The following day, President Trump issued EO14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, which purports to protect the civil rights of Americans and promote individual initiative, excellence, and hard work by ending illegal preferences and discrimination.

While the EOs mostly address the obligations of federal agencies and employees, these EOs may nevertheless have an impact on private sector employers and workplaces. To learn more about the EOs and what they mean for your business, review these highlights of the EOs’ collective impact on federal agencies, as well as federal contractors, subcontractors, federal funding and grant recipients, and other private employers and some important takeaways to adapt your workplace to the new norm.

Impact on Federal Agencies

  • Requires agencies to enforce laws governing sex-based rights and protections based on “sex,” which EO14168 defines as “an individual’s immutable biological classification as either male or female.”
  • Orders agencies to remove all statements, policies, and other communications that promote “gender ideology” which, under EO14168, “includes the idea that there is a vast spectrum of genders that are disconnected from one’s sex.”
  • Orders agencies to replace all references to “gender” with “sex” in all applicable policies and documents.
  • Directs the Attorney General to issue guidance to federal agencies to “correct the misapplication” of the U.S. Supreme Court’s Bostock v. Clayton County decision (recognized that sex discrimination includes discrimination on the basis of sexual orientation and gender identity), specifically with respect to single-sex spaces.
  • Orders agencies to rescind all guidance inconsistent with EO14168, including the Equal Employment Opportunity Commission’s Enforcement Guidance on Harassment in the Workplace.
  • Orders agencies to terminate all “illegal” DEI and DEIA preferences, mandates, policies, programs, and activities, without defining or explaining which DEI and DEIA policies, activities, etc. are “illegal.”
  • Orders the Office of Federal Contract Compliance Programs (OFCCP) to cease (1) promoting “diversity,” (2) holding federal contractors and subcontractors responsible for taking “affirmative action” under long-existing regulations, and (3) allowing federal contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.
  • Directs agencies to take steps to end “illegal” DEI practices in the private sector, without defining or explaining which DEI practices are “illegal.”
  • Requires agencies to each identify up to nine publicly traded companies with assets of $500 million or more to target for civil compliance investigations.

Impact on Federal Contractors, Subcontractors, Federal Funding Recipients, and Other Private Employers

  • Ends grant funds used to promote “gender ideology.”
  • Revokes prior DEI-related EOs, including one that established race- and sex-based affirmative action requirements for federal contractors and subcontractors.
  • Requires federal contractors and subcontractors to cease employment and contracting practices – including affirmative action programs – that consider race, color, sex, sexual preference, religion, or national origin in an unlawful discriminatory manner by April 20, 2025, although programs may continue until the deadline. Affirmative action obligations for veterans under the Vietnam Era Veterans’ Readjustment Assistance Act and for individuals with disabilities under the Rehabilitation Act are not affected and should continue.
  • Requires recipients of federal funds to certify they do not operate DEI programs that violate federal anti-discrimination laws, and states that such certifications are material for False Claims Act purposes.

Agency Guidance Issued by the DOJ and OPM

Shortly after the EOs were issued, the U.S. Department of Justice (DOJ) and U.S. Office of Personnel Management (OPM) issued a series of memos providing insight into the focus and interpretation of what the new administration considers to be unlawful DEI and DEIA programs, policies, and practices.

The DOJ’s first memo directs the agency to review all decrees, settlements, contracts, funding mechanisms, and internal policies and guidance that include “race- or sex-based preferences, diversity hiring targets, or preferential treatment based on DEI- or DEIA-related criteria,” and issue new guidance to affirm that equal treatment means avoiding “identity-based considerations” in its decisions and to narrow the use of disparate impact theories based on race- or sex-based preferences.

The second memo confirms that the DOJ’s Civil Rights Division (CRD) will investigate, eliminate, and penalize “illegal” DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector, and directs the CRD and Office of Legal Policy to submit recommendations to encourage the private sector to end illegal discrimination and preferences. Footnotes in both memos state the intent is to end programs, policies, and initiatives that discriminate based on race or sex and does not prohibit educational, cultural, or historical observances that celebrate diversity, recognize historical contributions, and promote awareness such as Black History Month or International Holocaust Remembrance Day.

The OPM issued a memo directing federal agencies to eliminate any DEIA offices, programs, policies, and practices – which notably extend to employee resource groups, “special emphasis programs” that make promotion decisions based on protected characteristics, and “diverse slate” policies that mandate the composition of hiring panels or candidate pools – that “unlawfully” discriminate in employment based on protected characteristics.

Employer Takeaways: What Does This Mean and What Should Employers Do Now?

While the EOs undoubtedly signal an aggressive stance against DEI initiatives, employers should be mindful that the EOs do not supersede statutory requirements, alter federal civil rights law, or change employment discrimination laws. Instead, the EOs call for the enforcement of existing laws making it unlawful to base employment decisions, in whole or in part, on an individual’s protected traits.

At the moment, the U.S. Supreme Court’s interpretation of Title VII and its decision in Bostock v. Clayton County still apply, which makes it unlawful for employers to discriminate on the basis of sexual orientation and gender identity. The EOs also do not impact state and local anti-discrimination laws, although employers will likely see changes through agency action, including the revision or rescission of prior guidance or the application of directives and restrictions, which may include a restricted approach to gender identity, new definitions of what it means to have “single-sex” spaces, and new implications for considering religious accommodation requests to be exempted from trainings and/or adhering to employer policies regarding transgender employees.

Federal contractors, subcontractors, and federal funding recipients have additional obligations, including requirements to end race- and sex-based affirmative action programs by April 20, 2025, although programs may continue until such time. Affirmative action programs for veterans and individuals with disabilities are not affected and should continue. These employers also must certify that they no longer operate programs promoting DEI that violate any applicable federal anti-discrimination laws and should be aware of the risks of being subjected to private lawsuits for making “fraudulent” certifications under the False Claims Act.

Pending further guidance from the OFCCP, federal contractors, subcontractors, and federal funding recipients should:

  • Take steps to end race- and sex-based affirmative action programs by April 20, 2025;
  • Consider reviewing and revising DEI policies, programs, practices, trainings, and DEI-related websites and communications as necessary to demonstrate that they clearly comply with Title VII’s prohibitions on race- and sex-based discrimination;
  • Ensure that employment practices and programs (e.g., making hiring and promotion decisions, or selecting employees for mentoring or leadership opportunities) do not consider race, color, sex, sexual orientation, gender identity, religion, or national origin in an unlawful discriminatory manner;
  • Maintain affirmative action obligations for veterans and individuals with disabilities; and
  • Stay tuned for additional guidance from the OFCCP, including certification requirements and changes in EEO-1 reporting obligations.

As we await further guidance, all other private employers should:

  • Continue enforcing policies prohibiting discrimination under federal, state, and local laws;
  • Consider reviewing and revising DEI policies, programs, practices, trainings, and DEI-related websites and communications as necessary to demonstrate that they clearly comply with Title VII’s prohibitions on race- and sex-based discrimination;
  • Ensure that employment practices and programs (e.g., making hiring and promotion decisions, or selecting employees for mentoring or leadership opportunities) are implemented without considering race, color, sex, sexual orientation, gender identity, religion, or national origin in an unlawful discriminatory manner;
  • Remain vigilant for changes in agency guidance and enforcement priorities; and
  • Be aware of increased scrutiny of DEI and DEIA initiatives and potential enforcement investigations of EEO policies and practices.

Many lawful and effective strategies remain available to employers seeking to promote inclusion and belonging for all employees in their workplaces. For more information on how you can create an effective DEI plan, register HERE for our complimentary webinar “Setting Your Organization’s DEI Strategy for 2025” taking place on February 27 at 1:00 PM (EST), where we will be discussing the latest trends, strategies, and legal considerations in creating effective DEI initiatives.