On January 21, 2025, President Trump signed several executive orders that have a significant impact on some employers and employees. Perhaps the most recognized is the executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (“DEI Order” or the “DEI executive order”) The DEI executive order is making its rounds on social media and there are several misconceptions about the effects of the DEI Order. This article will address some of those misconceptions as well as what rights employees have under this executive order.
DEI Executive Order or not, THE CIVIL RIGHTS ACT STILL EXISTS!
First, let’s cover the most important thing the DEI executive order does not do. The DEI Executive Order, does not abolish Title VII of the Civil Rights Act or any other federal law. It also does not eliminate the Equal Employment Opportunity Commission (“EEOC”), the federal agency which manages the administrative process that employees are required to go through before filing a lawsuit against their employer. If you currently have a complaint filed, the EEOC will continue to investigate that complaint.
If you have experienced discrimination based on your race, color, sex, sexual orientation, religion, or national origin and you are planning to file an EEOC complaint—you still must do so. There are strict time limits on bringing these kinds of complaints and failure to do so will impact your ability to bring a lawsuit against your employer.
However, limited funding may impact the process overall and it may take longer for you to hear back from your investigator.
The DEI Order does not apply to private employers who do not receive government funding
As of right now, the DEI executive order does not impose any requirements on private employers who do not receive government funding. If your company is not a U.S. government contractor, or does not otherwise get paid by the United States government, the directives in the executive order do not apply to you or your employer.
This executive order directs the federal Department of Labor and its bureaus to immediately cease (stop) promoting diversity; stop holding federal contractors and subcontractors responsible for taking affirmative action; and halts the prior encouragement of federal contractors to engage in “workforce balancing” based on race, color, sex, sexual orientation, religion, or national origin.
Also, it is unclear exactly how this will be implemented as the executive order does not officially take effect for ninety (90) days. As always, there might be tons of litigation and lawsuits surrounding it and its implementation.
The DEI Executive Order does not ban private employer DEI programs
Private employers are private and not necessarily subject to the DEI executive order. That means that Trumps order does not—and cannot—ban or prohibit private employer DEI programs. Those kinds of decisions are still up to the companies themselves. Put simply, the executive branch does not have that authority absent an act of Congress and any attempt would likely result in legal challenges under the First Amendment.
However, there are some directives in the DEI executive order that could eventually impact private sector employees. Under Trump’s DEI Order, the Attorney General is directed to work with the Office of Management and Budget to submit a report concerning private-sector discrimination, including preparing a plan to deter DEI programs and other strategies to encourage the private sector to end “illegal DEI discrimination and preferences and comply with all Federal civil-rights laws”. While your rights as a private employee (and private employer) are the same as before this order, this directive could change that. Should new information become available, this blog will be updated or we will post a new blog covering the new developments
ARE THE EXECUTIVE ORDERS LEGAL?
That’s to be determined. While Trump has a great deal of leeway over the federal government as head of the executive branch—it doesn’t mean the DEI executive order won’t be challenged in court. Because Trump’s order is freshly issued and federal employers have 90 days to comply it is unclear how the new obligations of the DEI executive order will be implemented.
Expect to see lawsuits pop up around the country challenging the requirements of this order. You may also see federal judges issuing “temporary injunctions” which could prevent parts of this order from being implemented.
If you are a private employee and your employer does not receive federal funding, your rights remain largely unchanged. Even if you are a federal employee, you still have protection under the Civil Rights Act. If you are experiencing discrimination or have questions about how the DEI executive order may impact you—our employment lawyers are available to hear the facts of your issue and discuss your options. Fill out a form or call today to schedule a free consultation.
