Executive Order 14151

“Ending Radical and Wasteful Government DEI Programs and Preferencing”

EO 14151

1/20/25: Order Issued

1/20/25: Order Issued

The EO may impact the terms of any contracts or grants that organizations receive from the federal government. This EO will particularly impact organizations that provide DEI training or other services directly to federal agencies, or who receive federal funding to advance DEI or environmental justice programs.

“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”

EO 14173

1/21/25: Order Issued

The order directs the Office of Federal Contract Compliance Programs to immediately cease promoting diversity and holding federal contractors and subcontractors responsible for taking affirmative action.

Certification Requirement: The order also requires the head of each federal agency to include in every contract or grant award terms requiring the contractor or grant recipient to (1) agree that its compliance with all federal anti-discrimination laws is material to the government’s decisions, for purposes of the application of the False Claims Act, and (2) certify that it does not operate any programs promoting DEI that violate any applicable federal nondiscrimination laws.

The certification requirements apply to charitable organizations who are federal contractors or grantees. The EO requires those organizations to certify that they do not engage in illegal DEI to maintain their contracts or grants. The EO does not articulate which DEI programs the administration considers illegal, though certain federal agencies have since distributed memoranda with relevant guidance. The False Claims Act prohibits making a false statement to the government, so the requirement that federal contractors and grant recipients also acknowledge that the False Claims Act applies to certifications made under the EO requires covered organizations to carefully assess their DEI programs before certifying.

One federal district court enjoined the certification and termination provisions of this EO in Nat’l Ass’n of Diversity Officers in Higher Educ. v. Trump, as discussed below.

“Defending Women from Gender Ideology Extremism and Restoring Truth to the Federal Government”

EO 14168

Active

1/20/25: Order Issued

This EO states that it is the policy of the United States to recognize only two sexes, male and female. The EO defines sex as an individual’s “immutable biological classification as either male or female.” Further, the order states that the term “sex” is not a synonym for and does not include concepts of “gender identity.” The EO defines gender ideology as “the idea that there is a vast spectrum of genders that are disconnected from one’s sex.” The EO states that “[g]ender ideology is internally inconsistent, in that it diminishes sex as an identifiable or useful category but nevertheless maintains that it is possible for a person to be born in the wrong sexed body.”

The EO requires federal agencies and employees to use the above definitions when interpreting or applying statutes, regulations, or guidance, and all other official agency business, documents, and communications. The EO also directs several agencies that issue government identification documents to reflect the holder’s sex as defined in the EO, meaning male or female. 

The EO prohibits the use of federal funds to “promote gender ideology,” and requires each agency to assess current grants to ensure compliance.

The EO’s requirement that federal agencies ensure that federal contractors and grant recipients comply with the EO impacts any charitable organization that is a federal contractor or grant recipient. Federal agencies may request that charitable organizations modify their policies to comply with the EO as a condition of continuing the contract or receiving future funding. 

Nat’l Ass’n of Diversity Officers in Higher Educ. et al vs. Donald Trump et al, No. 1:25-cv-00333 (D. Md. Feb. 3, 2025)

Challenge to Executive Orders Related to DEI

2/21/25: Court granted a preliminary injunction because Plaintiffs have established entitlement to a preliminary injunction on their First Amendment freedom of speech claim and Fifth Amendment due process vagueness claim.

2/24/25: Defendants have appealed the preliminary injunction order to the 4th Circuit.

Plaintiffs, the National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore, allege that EOs 14151 and 14173 violate the Spending Clause, Fifth Amendment’s Due Process Clause, Free Speech Clause, and the Separation of Powers. Plaintiffs are seeking declaratory judgment regarding both executive orders and an injunction to enjoin President Trump from enforcing both Executive Orders.

The preliminary injunction temporarily halts enforcement of the (1) the provision in EO 14151 directing all agencies to terminate all DEI-related grants or contracts; (2) the “certification provision” in EO 14173, requiring federal contractors and grant recipients to certify they do not engage in illegal DEI. The injunction does not prevent the Attorney General from continuing to investigate and identify potential targets for compliance actions due to “prudential and separation-of-powers reasons.” Similarly, the injunction does not prevent the Department of Justice or State Attorneys General from investigating potential violations of their respective False Claims Act statutes based on a good faith belief that a company may be failing to follow relevant laws and regulations.

Ames v. Ohio Dept. of Youth Services, No. 23-3341 (6th Cir. 2020)

Employment (Statutory Interpretation)

Active at U.S. Supreme Court

2/26/25: Oral argument held

Plaintiff, a heterosexual female, alleges discrimination and retaliation in violation of Title VII due to sexual orientation.

Sixth Circuit held that plaintiff failed to demonstrate “background circumstances to support the suspicion that the defendant is the unusual employer who discriminates against the majority.”

Plaintiff alleges the Sixth Circuit’s directive on “background circumstances” contravenes the text of Title VII and is vague, ill-defined, and unworkable.

If the Supreme Court strikes down the background circumstances test, it will make it easier for plaintiffs to bring reverse discrimination claims in the Circuits that had applied that rule.

Bradley v. Gannett Co. Inc., No. 1:23-cv-01100 (E.D. Va. 2023)

Employment (Hiring, Promotion, Termination)

Active

10/23/24: Defendant filed a reply brief in support of its pending motion to dismiss second amended complaint for failure to state a claim.

Class action plaintiffs (lead plaintiff is white) allege defendant implemented a “Reverse Race Discrimination Policy” that resulted in numerous highly qualified non-minority employees being terminated because of their race. Plaintiffs brought this action under Section 1981 of the Civil Rights Act.

Some of the recent guidance from federal agencies suggests some directors may be taking the view that aspirational goals related to race violate federal nondiscrimination laws. Although this case does not involve the executive orders, the outcome could provide clarity about the scope of race-specific aspirational goals.

Executive Order 14151

“Ending Radical and Wasteful Government DEI Programs and Preferencing”

EO 14151

1/20/25: Order Issued

1/20/25: Order Issued

The EO may impact the terms of any contracts or grants that organizations receive from the federal government. This EO will particularly impact organizations that provide DEI training or other services directly to federal agencies, or who receive federal funding to advance DEI or environmental justice programs.

“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”

EO 14173

1/21/25: Order Issued

The order directs the Office of Federal Contract Compliance Programs to immediately cease promoting diversity and holding federal contractors and subcontractors responsible for taking affirmative action.

Certification Requirement: The order also requires the head of each federal agency to include in every contract or grant award terms requiring the contractor or grant recipient to (1) agree that its compliance with all federal anti-discrimination laws is material to the government’s decisions, for purposes of the application of the False Claims Act, and (2) certify that it does not operate any programs promoting DEI that violate any applicable federal nondiscrimination laws.

The certification requirements apply to charitable organizations who are federal contractors or grantees. The EO requires those organizations to certify that they do not engage in illegal DEI to maintain their contracts or grants. The EO does not articulate which DEI programs the administration considers illegal, though certain federal agencies have since distributed memoranda with relevant guidance. The False Claims Act prohibits making a false statement to the government, so the requirement that federal contractors and grant recipients also acknowledge that the False Claims Act applies to certifications made under the EO requires covered organizations to carefully assess their DEI programs before certifying.

One federal district court enjoined the certification and termination provisions of this EO in Nat’l Ass’n of Diversity Officers in Higher Educ. v. Trump, as discussed below.

“Defending Women from Gender Ideology Extremism and Restoring Truth to the Federal Government”

EO 14168

Active

1/20/25: Order Issued

This EO states that it is the policy of the United States to recognize only two sexes, male and female. The EO defines sex as an individual’s “immutable biological classification as either male or female.” Further, the order states that the term “sex” is not a synonym for and does not include concepts of “gender identity.” The EO defines gender ideology as “the idea that there is a vast spectrum of genders that are disconnected from one’s sex.” The EO states that “[g]ender ideology is internally inconsistent, in that it diminishes sex as an identifiable or useful category but nevertheless maintains that it is possible for a person to be born in the wrong sexed body.”

The EO requires federal agencies and employees to use the above definitions when interpreting or applying statutes, regulations, or guidance, and all other official agency business, documents, and communications. The EO also directs several agencies that issue government identification documents to reflect the holder’s sex as defined in the EO, meaning male or female. 

The EO prohibits the use of federal funds to “promote gender ideology,” and requires each agency to assess current grants to ensure compliance.

The EO’s requirement that federal agencies ensure that federal contractors and grant recipients comply with the EO impacts any charitable organization that is a federal contractor or grant recipient. Federal agencies may request that charitable organizations modify their policies to comply with the EO as a condition of continuing the contract or receiving future funding. 

Nat’l Ass’n of Diversity Officers in Higher Educ. et al vs. Donald Trump et al, No. 1:25-cv-00333 (D. Md. Feb. 3, 2025)

Challenge to Executive Orders Related to DEI

2/21/25: Court granted a preliminary injunction because Plaintiffs have established entitlement to a preliminary injunction on their First Amendment freedom of speech claim and Fifth Amendment due process vagueness claim.

2/24/25: Defendants have appealed the preliminary injunction order to the 4th Circuit.

Plaintiffs, the National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore, allege that EOs 14151 and 14173 violate the Spending Clause, Fifth Amendment’s Due Process Clause, Free Speech Clause, and the Separation of Powers. Plaintiffs are seeking declaratory judgment regarding both executive orders and an injunction to enjoin President Trump from enforcing both Executive Orders.

The preliminary injunction temporarily halts enforcement of the (1) the provision in EO 14151 directing all agencies to terminate all DEI-related grants or contracts; (2) the “certification provision” in EO 14173, requiring federal contractors and grant recipients to certify they do not engage in illegal DEI. The injunction does not prevent the Attorney General from continuing to investigate and identify potential targets for compliance actions due to “prudential and separation-of-powers reasons.” Similarly, the injunction does not prevent the Department of Justice or State Attorneys General from investigating potential violations of their respective False Claims Act statutes based on a good faith belief that a company may be failing to follow relevant laws and regulations.

Ames v. Ohio Dept. of Youth Services, No. 23-3341 (6th Cir. 2020)

Employment (Statutory Interpretation)

Active at U.S. Supreme Court

2/26/25: Oral argument held

Plaintiff, a heterosexual female, alleges discrimination and retaliation in violation of Title VII due to sexual orientation.

Sixth Circuit held that plaintiff failed to demonstrate “background circumstances to support the suspicion that the defendant is the unusual employer who discriminates against the majority.”

Plaintiff alleges the Sixth Circuit’s directive on “background circumstances” contravenes the text of Title VII and is vague, ill-defined, and unworkable.

If the Supreme Court strikes down the background circumstances test, it will make it easier for plaintiffs to bring reverse discrimination claims in the Circuits that had applied that rule.

Bradley v. Gannett Co. Inc., No. 1:23-cv-01100 (E.D. Va. 2023)

Employment (Hiring, Promotion, Termination)

Active

10/23/24: Defendant filed a reply brief in support of its pending motion to dismiss second amended complaint for failure to state a claim.

Class action plaintiffs (lead plaintiff is white) allege defendant implemented a “Reverse Race Discrimination Policy” that resulted in numerous highly qualified non-minority employees being terminated because of their race. Plaintiffs brought this action under Section 1981 of the Civil Rights Act.

Some of the recent guidance from federal agencies suggests some directors may be taking the view that aspirational goals related to race violate federal nondiscrimination laws. Although this case does not involve the executive orders, the outcome could provide clarity about the scope of race-specific aspirational goals.