The Trump Administration issued two executive orders in January aimed at eradicating diversity, equity, and inclusion (“DEI”) initiatives throughout the federal government and even in the private sector. In response, large corporations are dissolving their DEI activities, and many have done so with surprising speed. At times, the orders have led to odder and sometimes unexpected consequences, including the end of a tree-planting initiative in New Orleans and the removal of a “gay” airplane’s photo from the Department of Defense’s website.
The sweeping ambition of these orders, and the buzz around them, have led many to ask fundamental questions: What is DEI anyway? And is it now against the law?
What Is DEI?
“DEI” stands for “diversity, equity, and inclusion.” Sometimes it is written as “DEIB,” to incorporate “belonging,” or “DEIA” to recognize “accessibility.” DEI refers largely to initiatives in the workplace meant to bolster numbers of and support for minority workers, based on race, gender, sexual orientation, and other factors.
DEI is a response to the reality of disparities between majority and minority groups in representation, career advancement, compensation and wealth, educational attainment, health outcomes, and more. DEI can be seen as an outgrowth of the Civil Rights Movement and the passage of the Civil Rights Act of 1964.
What’s in the Executive Order on “Ending Radical DEI”?
There are two executive orders primarily concerned with DEI, although others may touch upon it. Each contains numerous requirements. Only the most pertinent are summarized here.
“Ending Radical And Wasteful Government DEI Programs And Preferencing” was signed on January 20, 2025. Its opening salvo claims that the Biden Administration “forced illegal and immoral discrimination programs” onto the federal government by instituting DEI initiatives. As a result, The Trump Administration believes it must step in.
Federal agencies and other bodies are ordered to terminate “all DEI, DEIA and ‘environment justice’ offices and positions” throughout the government. More broadly, Trump Administration officials will end “all discriminatory programs, including illegal DEI and…DEIA mandates, policies, programs, preferences, and activities,” which can even include union contract terms and “training policies.”
Agencies are required to submit a record of all DEI-related activity to administration officials. They must also furnish lists of federal contractors who provided DEI training and entities that received federal funding to advance DEI initiatives.
Notably, each agency head must attend monthly meetings with Trump officials to “hear reports on the prevalence and the economic and socials costs of DEI” programs and to “monitor and track” progress at each agency toward eradicating any and all DEI activity.
What’s in the Executive Order on “Ending Illegal Discrimination”?
“Ending Illegal Discrimination and Restoring Merit-Based Opportunity” was signed the following day. It revokes several past executive orders aimed at increasing diversity in the federal workforce, including Lyndon B. Johnson’s Executive Order 11246 of September 24, 1965, which historically required a policy of non-discrimination and equal opportunity in the federal government and among federal contractors.
Characterizing DEI policies as potentially violating the nation’s civil rights laws, this executive order not only directs all federal agencies to “terminate all discriminatory and illegal preferences” but also instructs them to “combat illegal private-sector DEI” initiatives. As a result, federal contractors and grant recipients must certify that they do not apply DEI policies that could violate anti-discrimination laws.
The Attorney General is directed to draft a report that names “the most egregious and discriminatory DEI practitioners in each sector of concern.” The report must include a plan to “deter DEI programs or principles,” and identify litigation that could be used to further the aims of the order.
Further, each federal agency is required to “identify up to nine potential civil compliance investigations” of large companies and non-profits, bar and medical associations, and institutions of higher education. The administration will also issue guidance to educational institutions that receive federal funding on how to comply with this order.
The order makes very clear that larger institutions that fail to end their DEI initiatives will be targets of the Trump Administration, including via legal action. Curiously, neither of the orders defines what constitutes “DEI,” “equity,” or other loaded terms.
Weren’t the Executive Orders Challenged?
A lawsuit challenging the executive orders was brought by, among others, the American Association of University Professors and the National Association of Diversity Officers in Higher Education. The suit opposed the broad scope of the orders and what it viewed as an excessive presidential power-grab, demonstrated with a key phrase: “In the United States, there is no king.”
Initially, a federal judge granted a preliminary injunction that temporarily blocked Trump’s executive orders from taking effect. The court found the orders would likely be deemed unconstitutional because they appear to infringe upon free speech rights and are too vague.
The Trump Administration appealed to the U.S. Court of Appeals for the Fourth Circuit, which lifted the injunction, essentially allowing the orders to take effect while the parties continue litigation. Yet the court asserted that the orders have a "distinctly limited scope" that only targets activity that violates anti-discrimination law. Moreover, the court noted that even if the orders themselves are not unconstitutional on their face, the way they are enforced could lead to First Amendment and due process concerns. In other words, the orders are not clearly unconstitutional, according to this court, but the way they become implemented may very well be.
Another lawsuit was brought by Chicago Women in Trades (“CWIT”), which asked a judge from the U.S. District Court of the Northern District of Illinois (“NDIL”) to enter a temporary restraining order (“TRO”) against two provisions of the executive orders. The court agreed and held that 1) the U.S. Department of Labor (“DOL”) may not cancel government contracts because a grantee has DEI initiatives, and 2) grantees need not certify that they do not have DEI initiatives.
The court’s ruling is limited to the DOL and the contract cancellation portion of the ruling is relevant only to CWIT and its affiliates. The restraining order against the DOL’s ability to require anti-DEI certification, however, is meant to have nationwide reach. Given the procedural complexity here, it appears that the certification requirement has technically been blocked everywhere but within the Fourth Circuit. If the Seventh Circuit, in which the NDIL is housed, ends up coming to a different conclusion than the Fourth Circuit, there could be a circuit split, setting up a legal battle ripe for the Supreme Court.
So…Is DEI Illegal?
According to the executive orders, and as the appeals court made clear, “illegal” DEI is illegal. Of course, what that means is up for debate. What is interpreted by this administration as “illegal” may very well encompass DEI activity that has long been considered legal, and in fact central to achieving long-term civil rights goals. The short answer is: not all DEI is illegal, but what exactly is safe is currently unclear.
Many businesses—traditionally not known as fans of governmental regulation—have been scrambling to comply with these executive orders, whether out of fear or out of a desire to curry favor with the current administration. Scores of companies, including Google, Amazon, Meta, McDonald’s, Walmart, and even PBS have terminated diversity officers, ended DEI programs, stopped reporting certain diversity data, or otherwise scaled back their DEI initiatives in response to the executive orders. And Target reversed course against a previously pro-DEI stance, pivoting from “woke to joke” as one news outlet put it, after which Target has seen a decline in both foot traffic and earnings.
Yet other companies are boldly maintaining their commitment to DEI. Chief among these is Costco, which has seen an increase in foot traffic and market share after its shareholders refused to bow to anti-DEI pressure.
DEI is not necessarily illegal, and businesses are responding to the administration’s pressures in various ways. In the short term, all eyes will be on how the Trump Administration enforces its executive orders. Meanwhile, litigation over the constitutionality of the executive orders is continuing and could take some time to resolve.
Stay tuned for a follow-up post on what businesses can and cannot do regarding DEI, the sharp penalties that could await violating businesses, and the EEOC’s new guidance on DEI in the workplace.