In January 2025, President Trump issued Executive Orders 14151 and 14173, essentially instructing executive agencies to end DEI (diversity, equity, and inclusion) programs within federal grant and contract programs. Trump’s Executive Orders revoked Executive Order 13985, which, under President Biden, required Federal agencies to identify ways they have furthered DEI. Trump’s Executive Orders also revoked EO 11246, with Trump’s Orders stating that federal contractors and subcontractors are not to take affirmative action, or consider race, color, sex, sexual preference, religion, or national origin in ways that violate federal anti-discrimination laws. As an about-face to earlier requirements, each agency is now to excise all references to DEI in federal grants, contracting, financial assistance, etc., and to include in each contract or grant a term requiring compliance. In addition, Federal agencies are to provide to the Director of the OMB a list of Federal contractors who provided DEI training or materials to agency or department employees. Trump’s Executive Orders also contain instructions for the Attorney General in coordination with the Director of the OMB to submit a report containing recommendations to encourage the private sector to end DEI.
Following Trump’s Executive Order, Federal contractors have been scrambling to comply, shifting from compliance with DEI initiatives under prior Executive Orders, to removing DEI initiatives under Trump’s Executive Orders.
Fourth Circuit Order
Potential Constitutional issues and mixed case law have further complicated the issue. Initially, a district court in the Fourth Circuit issued a nationwide preliminary injunction challenging Trump’s Executive Orders under the Constitution. But, on March 14, 2025, the Fourth Circuit issued an Order staying the preliminary injunction, finding that the government made a strong showing that it is likely to succeed on the merits. However, in their concurring opinions, the Fourth Circuit Judges warned that although the Executive Orders appear to be valid on their face, if agencies do not apply the Executive Orders narrowly in accordance with the language of the Executive Orders, there is risk of potential First and Fifth Amendment violations. Judge Harris noted that the challenged Executive Orders are “distinctly limited in scope,” since the Executive Orders largely do not establish illegality, but rather apply to conduct that violates existing federal anti-discrimination law. Judge Diaz also raised ambiguity in Trump’s Executive Orders, noting that they are unclear as to what types of DEI programs are prohibited since neither of President Trump’s Orders define what constitutes DEI or its component terms.
Northern District of Illinois Preliminary Injunction
Recently, a judge in the US District Court for the Northern District of Illinois further complicated the matter by issuing a preliminary injunction ordering that Trump’s Executive Orders would not interfere with the Chicago Women in Trades’ (“CWIT”) Women in Apprenticeship and Nontraditional Occupations. The Judge found that the CWIT was likely to succeed on its First Amendment claim in challenging Trump’s Executive Orders. This preliminary injunction raises further questions as to how Trump’s Executive Orders will apply, and whether and how it will be challenged by courts.
Federal Contractor Uncertainty
Courts have raised ambiguities and uncertainties in Trump’s Executive Orders, leaving contractors with questions regarding what DEI the Executive Orders prohibit. In addition, Federal contractors face uncertainty as to how agencies will apply Trump’s Executive Orders since Courts have stated that the Executive Orders may be unconstitutional and that agencies may violate the law by applying the Executive Orders in a manner beyond the scope of their narrow language.
This means that compliance requirements could shift very quickly, and contractors may need to adapt quickly in their approach to DEI.
Brendan F. Cassidy is an attorney at Praemia Law, PLLC. This article is for general informational purposes only and should not be relied upon or regarded as legal advice. Please contact Brendan Cassidy at brendan.cassidy@praemialaw.com or 703-399-3603 concerning particular facts and circumstances.
