Category: civil rights

The DEI Dilemma: New EEOC Guidance on DEI Initiatives

On March 20, 2025, the Equal Employment Opportunity Commission (“EEOC”) issued two key pieces of guidance: What To Do If You Experience Discrimination Related to DEI at Work and What You Should Know About DEI-Related Discrimination at Work. This guidance provides insights into the issues the EEOC will be monitoring regarding employers’ Diversity, Equity, and Inclusion (“DEI”) policies.
What Are Considered “DEI Policies”?
DEI consists of programs and policies that seek to promote the fair treatment and full participation in the workplace. Traditionally thought of as a remedial measure, DEI policies have focused on balancing the workplace by establishing organizational frameworks and initiatives, such as putting a spotlight on hiring and retaining members of particular groups who may have historically been underrepresented or subject to discrimination, including women, racial and religious minorities, and persons with disabilities.
Identifying Potential DEI Discrimination
Title VII of the Civil Rights Act of 1964 (“Title VII”), a statute enforced by the EEOC, prohibits employment discrimination based on protected characteristics such as race and sex. Different treatment based upon any characteristic protected by Title VII can be unlawful discrimination, no matter which employees are harmed; Title VII’s protections apply equally to all religious, racial, ethnic, and national origin groups, and regardless of sex. The EEOC’s position is that “there is no such thing as ‘reverse’ discrimination; there is only discrimination.” As noted by the guidance, “DEI policies, programs, or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated, in whole or in part, by an applicant’s or employee’s race, sex, or another protected characteristic.”
The EEOC’s guidance cautions that DEI initiatives could violate Title VII if they result in disparate treatment in the terms, conditions, or privileges of employment—including intangible terms such as exclusion from mentoring or sponsorship programs or workplace networking events, exclusion from training or fellowships, and selection preferences for interviews. Prohibited DEI conduct includes actions that may limit, segregate, or classify individuals based on a protected characteristic; examples provided in the guidance include limiting membership in workplace groups (such as affinity groups) to certain protected groups, and separating employees into groups based on a protected characteristic when administering DEI or other trainings—even if the separate groups receive the same programming content. Even if affinity groups or programs aren’t created or maintained by the employer, making company time, facilities, or premises available, and other forms of official or unofficial encouragement or participation may be seen by the EEOC as the employer “sponsoring” those activities, thus making the company liable for any prohibited exclusion by those groups.
According to the EEOC, “[d]epending on the facts, DEI training may give rise to a colorable hostile work environment claim.” If an individual is subjected to unwelcome remarks or conduct based upon race, sex, or other protected characteristics and it either (i) results in an adverse change to a term, condition, or privilege of their employment, or (ii) it is so frequent or severe that a reasonable person would consider it intimidating, hostile, or abusive,  those circumstances may constitute a Title VII violation. Further, an employee’s “[r]easonable opposition to DEI training may constitute protected activity if the employee provides a fact-specific basis for his or her belief that the training violates Title VII.”
Potential Risks
Employees and applicants who have been subjected to unlawful discrimination or retaliation under Title VII are entitled to recover back- and front-pay damages, compensatory damages up to between $50,000 and $300,000 (depending upon the employer’s size), punitive damages, and attorneys’ fees. In cases involving intentional age discrimination, or in cases involving intentional sex-based wage discrimination under the Equal Pay Act, individuals cannot recover compensatory or punitive damages but can recover liquidated damages if the discrimination is found to be especially malicious or reckless.
An individual alleging discrimination based on an employer’s generally applicable policy also has a basis to join with others who have been negatively affected by that policy, creating a significant risk an employer may face a collective action with a nationwide class of employees.
Practical Advice for Employers
To avoid potential issues under Title VII (and potentially applicable state laws), employers should take the following action:

Review workplace policies, employee handbook, and training materials to ensure they comply with the EEOC’s recent guidance. Consider whether the EEOC would view them as violative of Title VII, such as by indicating a preference for particular races or sex. Ensure that any employee affinity groups are open to all employees. A “Working Mothers” group or “Minority Mentorship” program that is not open to everyone, for example, may violate Title VII in the EEOC’s view.
Provide training to all employees. Ensure your managers and employees are aware of Title VII’s protections against harassment, discrimination, and retaliation. Ensure that such training is inclusive and respectful of all employees, and includes discussion of how employees can report suspected violations.

If in doubt, contact legal counsel. The law and agency guidance around DEI and equal employment policies can be complicated, and the legal landscape—both at the federal and local levels—shifts frequently. Experienced employment counsel can help clients navigate these issues, ensuring the company and employees’ and applicants’ rights are protected.

It’s the End of Diversity, Equity and Inclusion (DEI) Programs as We Know It?

As promised in his campaign for the presidency of the United States, on January 21, 2025, President Trump issued Executive Order 14172 “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” (Emphasis added).
The President’s Executive Order states that illegal diversity, equity and inclusion (“DEI”) policies violate the text and spirit of federal civil-rights laws.
Accordingly, the President ordered all federal agencies to enforce civil rights laws and to “combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.” The President further ordered the Attorney General to submit a report with recommendations for enforcing federal civil rights laws and “taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.”
Additionally, the President revoked Executive Order 11246 of September 24, 1965 (Equal Employment Opportunity). Executive Order 11246 prohibited discrimination and required affirmative action be taken by federal contractors.
There have been several federal court challenges to these Executive Orders. On February 5, 2025, an employer group filed a constitutional challenge to portions of Executive Order 14172. Most recently, on March 6, 2025, the American Civil Liberties Union (ACLU) of Rhode Island filed a lawsuit on behalf of an employer seeking a preliminary injunction regarding the government contractor portions of these Executive Orders. For now, however, these Executive Orders are in place, with challenges pending.
Enforcement of the President’s Executive OrderOn February 5, 2025, Attorney General Pam Bondi issued a memorandum to all Department of Justice employees with the subject heading: “Ending Illegal DEI and DEIA Discrimination and Preferences.”
In the memorandum, the Attorney General wrote “[a]s the United States Supreme Court recently stated, “[e]liminating racial discrimination means eliminating all of it.” Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 206 (2023). The Attorney General also stated,
“[t]o fulfill the Nation’s promise of equality for all Americans, the Department of Justice’s Civil Rights Division will investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector and in educational institutions that receive federal funds.”

Notably, the Attorney General’s memorandum includes a footnote that states that it “does not prohibit educational, cultural, or historical observances—such as Black History Month, International Holocaust Remembrance Day, or similar events—that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.”
So, What is “Illegal” DEI? The EEOC Speaks on March 19, 2025Note that all of the above statements include the word “illegal” when referencing the ending of DEI. The fact is that racial- and gender-based preferences in hiring and promotion have been unlawful for decades. However, the EEOC has been tasked with focusing on what they are calling “DEI-related discrimination” and has issued a technical assistance document setting forth explaining how DEI programs can run afoul of Title VII. The guidance states that “unlawful discrimination includes any consideration of race, sex or any other protected characteristic under Title VII.” According to EEOC, “[a]n employment action still is unlawful even if race, sex, or another Title VII protected characteristic was just one factor among other factors contributing to the employer’s decision or action.”
EEOC stated, “Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employment discrimination based on protected characteristics such as race and sex.” Therefore, “under Title VII, DEI initiatives, policies, programs, or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.”
Further, “Title VII also prohibits employers from limiting, segregating, or classifying employees or applicants based on race, sex, or other protected characteristics in a way that affects their status or deprives them of employment opportunities. In the context of DEI programs, unlawful segregation can include limiting membership in workplace groups, or other employee affinity groups, to certain protected groups.”
EEOC gave direction to employers by stating employers should instead provide “training and mentoring that provides workers of all backgrounds the opportunity, skill, experience, and information necessary to perform well, and to ascend to upper-level jobs.” Employers also should ensure that “employees of all backgrounds … have equal access to workplace networks.”
Coupled with the prohibition on DEI programs, EEOC also issued guidance on their position involving “reverse” discrimination claims. There is not a requirement of a higher showing of proof in reverse discrimination claims, as there is only discrimination. The EEOC applies the same standard of proof to all race discrimination claims, regardless of the victim’s race.
What Should Employers Do Now?

Recognize that DEI is not in and of itself illegal. With thoughtfulness, employers can still promote an inclusive and supportive workplace with various initiatives and programs without them being labeled by the federal government as problematic. For example, inclusive programs making mentoring available to all employees regardless of protected status can be effective to foster diversity and inclusivity.
Review Programs and Policies. Employers should review their employment practices to determine if there are any initiatives, policies, programs, or practices that could be considered “illegal” DEI pursuant to the EEOC guidance. For example, hiring program elements with preferences or quotas based on protected status should be analyzed to avoid disparate treatment based on protected status. However, key features of most DEI programs have been and continue to be legal. For example, using interview panels to help reduce bias in the interview process; ensuring that hiring criteria is standardized and focuses on skills, and fine-tuning recruitment efforts to attract a larger pool of candidates and varying backgrounds are all acceptable program features. Employee resource groups also continue to be legal, but like before, they cannot exclude membership based on race or gender or other protected class. It is also permissible to focus on ensuring that interview processes accommodate individuals with disabilities.
Act Methodically. Not everything that employers are doing to encourage a diverse, equitable, or inclusive workplace culture will be considered illegal. As the Attorney General noted, there are educational, cultural, or historical observances, or similar events that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination. Because “diversity, equity, and inclusion” have become controversial buzzwords, focusing on programs that promote “access” and “opportunity” may be helpful.
Educate Supervisors. Ensure supervisors understand EEOC’s guidance and reaffirm organizational commitments to legal compliance with anti-discrimination laws.
Monitor Developments. Without a doubt, the federal government is transforming very quickly. Judicial involvement in the executive action affects this transformation. Employers should continue monitoring legal developments and remain flexible and nimble to address this changing environment.

Federal Judge Restrains Liability for Alleged False DEI Certifications

President Trump’s January 21 Executive Order targeting Diversity, Equity, and Inclusion Programs (DEI) (the “January 21 Executive Order”) and, specifically, § 3(b)(iv)) (the Certification Provision) cannot be the basis for liability — at least for one proactive litigant in the Northern District of Illinois. The holding could have broader implications for False Claims Act (FCA) defendants concerned about evolving certification requirements.
On January 20 and 21, 2025, President Trump issued two executive orders targeting Diversity, Equity, and Inclusion programs (titled, “Ending Radical and Wasteful Government DEI Programs and Preferencing” and “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” respectfully). The January 21 Executive Order included a direction to agencies (the “Certification Provision”) to require federal grant recipients to certify they do not “operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws” and to “agree that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions for purposes of [the FCA].” Immediately, this provision raised concerns that the Trump Administration may use the Certification Provision to bring FCA cases against grant recipients who do not comply. The threat of FCA litigation is paused for now, at least for Chicago Women in Trades (CWIT).
In February 2025, CWIT sued the Trump administration arguing, among other things, the Certification Provision violates its First Amendment Right to free speech because it “effectively regulates CWIT’s conduct outside of the contours of the federal grants.” (See Chicago Women in Trades v. Trump et al., Case No.1:25-cv-02005, N.D. Ill.)In response, the government argued the Certification Provision only implicates “illegal” DEI programs and no one has a constitutional right to violate the law. On March 27, 2025, U.S. District Court Judge Matthew Kennelly granted CWIT’s motion for a Temporary Restraining Order, preventing the Department of Labor from enforcing the Certification Provision and the Government from “initiat[ing] any False Claims Act enforcement against CWIT pursuant to the Certification Provision.”
In its Order, the court held the Certification Provision’s definition of what is an illegal DEI program is “left entirely to the imagination.” In the court’s view, the government has emphasized that conduct violating anti-discrimination laws has changed, and the government also has been “unwilling to in (in its briefs or at argument) define how it has changed.” This uncertainty put CWIT (and other grantees) in a difficult position — they must either decline to make a certification and lose federal grant money or risk making a certification that is later deemed to be false because the meaning of an illegal DEI program is unknown, subjecting “the grantee to liability under the False Claims Act.”[1]
While the Order restricts the Government specifically with respect to CWIT and the Certification Provision, lawsuits like CWIT’s will force federal courts across the country to determine what the Certification Provision means for FCA litigation going forward.
If you have questions about President Trump’s January 21 Executive Order or the False Claims Act, contact the authors or your Foley relationship lawyer.

[1] The court also said even if the government did define an illegal DEI program, the January 21 executive order still reads as an “express reference to First Amendment-protected speech and advocacy.”

EEOC/DOJ Joint DEI Guidance, EEOC Letters to Law Firms, OFCCP Retroactive DEI Enforcement [Video] [Podcast]

This week, we highlight new guidance from the Equal Employment Opportunity Commission (EEOC) and Department of Justice (DOJ) on diversity, equity, and inclusion (DEI)-related discrimination.
We also examine the Acting EEOC Chair’s letters to 20 law firms regarding their DEI practices, as well as the Office of Federal Contract Compliance Programs (OFCCP) Director’s orders to retroactively investigate affirmative action plans.
EEOC and DOJ Warn DEI Policies Could Violate Title VII 
The EEOC and the DOJ jointly released guidance on discrimination in DEI policies at work, warning that these policies could violate Title VII of the Civil Rights Act of 1964. Although the guidance does not define DEI, it provides clarity on the EEOC’s focus moving forward.
Acting EEOC Chair Targets Law Firms
Acting Chair Andrea Lucas sent letters to 20 law firms warning that their employment policies intended to boost DEI may be illegal. 
OFCCP Plans Retroactive DEI Enforcement
A leaked internal email obtained by The Wall Street Journal reveals that newly appointed OFCCP Director Catherine Eschbach has ordered a review of affirmative action plans submitted by federal contractors during the prior administration. These reviews will be used to help determine whether a federal contractor should be investigated for discriminatory DEI practices.

Navigating the Termination of CHNV Parole Programs: Insights on I-9 Reverification and INA Compliance for Employers

On March 25, 2025, the Department of Homeland Security (DHS) announced the termination of the parole processes for citizens or nationals of Cuba, Haiti, Nicaragua, and Venezuela (CHNV parole programs). This decision will affect employers who must navigate the employment eligibility of affected individuals while ensuring compliance with anti-discrimination provisions outlined in the Immigration and Nationality Act (INA). The termination of these programs means that any parole status and employment authorization derived through CHNV parole programs will end by April 24, 2025. Employers must take steps to manage the reverification of affected employees’ employment eligibility without engaging in discriminatory practices.
Understanding the Challenges
As part of the CHNV parole programs, employment authorization documents (EADs) issued to beneficiaries bear the category code (C)(11). However, this code is not exclusive to CHNV beneficiaries, making identification difficult. Additionally, some CHNV beneficiaries may have updated their Forms I-9 with EADs that have validity dates extending beyond April 24, 2025. Employers who wish to ensure compliance face a complex challenge: how to identify affected employees for reverification without inadvertently violating the INA’s anti-discrimination provisions.
Employers who complete and retain paper I-9 forms, do not keep copies of identity and employment authorization documents, and do not participate in E-Verify may find the process particularly challenging. Sorting and extracting Forms I-9 based on “Foreign Passport and Country of Issuance” in Section 1, or by identifying Forms I-9 listing EADs in Section 2, may result in List A displaying overly broad findings, as these methods may capture individuals who are not CHNV beneficiaries and who hold valid employment eligibility.
Legal Compliance Considerations
The INA’s anti-discrimination provisions, particularly 8 USC § 1324b(a)(1)(A) and (a)(6), prohibit employers from treating employees differently based on citizenship, immigration status, or national origin. Employers are also prohibited from requesting additional or different documentation from employees based on these factors. The Department of Justice’s Immigrant and Employee Rights (IER) Section, formerly the Office of Special Counsel (OSC), has emphasized that employers should avoid making employment decisions—including reverification processes—based on an employee’s citizenship, immigration status, or national origin.
In the meantime, employers should consider:

Maintaining thorough records of the reverification process to demonstrate compliance with federal requirements and anti-discrimination provisions.
Conducting internal audits to ensure that no employees are treated differently based on citizenship, immigration status, or national origin during the reverification process.
Providing training to HR personnel and compliance teams on how to handle reverification without violating INA provisions, emphasizing the importance of treating all employees consistently and fairly.
Tracking the expiration dates of employees whose employment eligibility needs to be reverified.
Notifying affected employees of their upcoming need to provide updated documentation, regardless of their citizenship or immigration status. Do not request specific documents or additional information beyond what is required.

Key Takeaways
This issue represents new territory which has not been thoroughly analyzed or reviewed to date by authorities. IER technical guidance may be forthcoming on what U.S. employers should do if a particular classification of employment eligibility is suddenly terminated by the government, but some beneficiaries in that classification have updated their Forms I-9 with employment authorization validity dates that go beyond the termination date (April 24, 2025).

Reproductive Health Under Trump: What’s New and What’s Next

Overview

Over the past two months, the second Trump administration has shifted federal policies and priorities regarding abortion, in vitro fertilization (IVF), contraception, and other reproductive-health-related matters – and it is expected to continue to do so. In addition to the federal policy agenda, many developments related to reproductive health likely will continue to occur at the state level. The Dobbs decision shifted policymaking in these areas toward the states, and lawmakers and advocates have expressed their intentions to either adhere to or protect against the new administration’s policies and agenda items. This article discusses some of the major recent trends in women’s health and reproductive health, and what is likely to come next under the new administration.

In Depth

THE TRUMP ADMINISTRATION WILL CONTINUE TO WEAKEN BIDEN-ERA POLICIES THAT PROTECT REPRODUCTIVE HEALTH
The Hyde Amendment
During its first month, the second Trump administration signed several executive orders (EOs) and otherwise signaled its approach to certain reproductive health measures that were previously in place. For instance, in the first week of his presidency, US President Donald Trump signed an EO entitled “Enforcing the Hyde Amendment,” which called for an end to federal funding for elective abortions and revoked two previous EOs that permitted such funding. The EO charged the Office of Management and Budget with providing guidance around implementing the mandate. While the EO was not a surprise, it referred to the Hyde Amendment and “similar laws,” leaving some ambiguity in its scope and the way in which it will be implemented in practice (e.g., it could be used to target federal funds for abortion and perhaps related services by other federal agencies, such as the US Departments of Defense, Justice, and State). In response to this EO, federal agencies could revoke Biden-era policies and reinstate or expand upon Trump administrative policies. Such efforts may include recission of Biden-era regulations that authorized travel for reproductive-health-related needs for servicemembers and their families and permitted abortion services through the US Department of Veterans Affairs.
The Comstock Act
Although we have not seen activity in this respect to date, the new administration will likely rescind the Comstock Act Memo, which was published by the US Department of Justice (DOJ) Office of Legal Counsel. This memo was issued in December 2022 by the Biden administration following the Dobbs decision. The Comstock Act is a federal criminal statute enacted in 1873 that prohibits interstate mailing of obscene writings and any “article or thing designed, adapted, or intended for producing abortion.” Violations of the Comstock Act are subject to fines or imprisonment. The Comstock Act Memo sets forth the opinion of the DOJ Office of Legal Counsel that the Comstock Act does not prohibit mailing abortion-inducing medication unless the sender explicitly intends for it to be used unlawfully. If the new administration revokes this memo or attempts to apply the Comstock Act to the mailing of abortion-inducing medication (and, perhaps, any abortion-inducing implements, which could have even wider-reaching implications) regardless of intent, it could become very difficult for patients to obtain abortion-inducing medication. Such actions also could lead to complications related to the provision of such medications via the mail (and potentially in person, depending on the attempted interpretation). At the time of publication, the DOJ website still included the Comstock Act Memo, noting that 18 U.S.C. § 1461 does not prohibit the mailing of abortion-inducing medication when the sender does not intend for the recipient to use the drugs unlawfully.
The 2024 HIPAA Final Rule on Access to Reproductive Health Records and Related State Activity
In 2024, the US Department of Health and Human Services Office for Civil Rights (OCR) published a Health Insurance Portability and Accountability Act (HIPAA) final rule to support reproductive healthcare privacy (2024 final rule). The 2024 final rule prohibits a covered entity or business associate from disclosing protected health information (PHI) for conducting an investigation into or imposing liability on any person for seeking, obtaining, providing, or facilitating reproductive healthcare where the reproductive healthcare is lawful. The 2024 final rule also prohibits disclosure of PHI to identify any person for the purpose of conducting an investigation or imposing liability. The enforcement mechanism of the 2024 final rule includes an attestation component under which a requesting party must certify that the use of the PHI is not prohibited when requested for health oversight activities, judicial or administrative proceedings, law enforcement purposes, or disclosures to coroners and medical examiners under 42 C.F.R. § 164.512. The Trump administration likely will not enforce (and may reverse) protections around reproductive health data under the 2024 final rule, which would leave a bigger gap for the states to potentially fill, as evidenced by the EO regarding enforcement of the Hyde Amendment and rollback of other Biden-era reproductive health protections.
In response to increased scrutiny of reproductive healthcare, several states have enacted laws protecting healthcare providers, patients, and others involved in providing or receiving reproductive healthcare. Although these laws vary from state to state, they generally prohibit disclosure of data and other information related to reproductive healthcare that was lawfully obtained by a patient and provided by a healthcare provider. These laws can provide a certain level of comfort to providers that provide care to patients who travel across state lines to receive care that may be unavailable to them in their home state but is accessible and lawfully provided in another state. States that do not have such laws may seek to enact similar protections under the new administration as federal protections become less certain, particularly if the layer of protection afforded by the 2024 final rule is revoked or otherwise diminished.
ABORTION POLICY WILL CONTINUE TO BE LARGELY DICTATED BY STATES AND MAY EXPAND INTO NEW AREAS OF FOCUS
Following the Dobbs decision, many states quickly took action to enshrine abortion protections in their laws and constitutions. Some states, such as Michigan, moved to overturn old, unenforced abortion bans on their books. Michigan further implemented laws, executive actions, and eventually a ballot measure to amend its state constitution. This trend has continued; in the November 2024 presidential election, seven states passed ballot measures to protect abortion access. However, the 2024 election also marked the first three abortion protection ballot referendums that failed to pass. Voters in South Dakota and Nebraska rejected proposed constitutional amendments, and a measure in Florida received only 57% of the vote where a 60% majority was required.
In the years since Dobbs, new laws and court cases have largely sorted the states into two categories: states that are more protective and states that are more restrictive regarding abortion. However, the law remains unsettled in a few states, such as Georgia and Wisconsin, where pending court cases, legislative action, and gubernatorial executive action may result in different outcomes. In the 2024 election, Missouri voters passed a ballot initiative to overturn the state’s strict ban on abortion and enshrine reproductive rights in the state constitution, effectively switching the state from more restrictive to more protective. More constitutional ballot measures could come in states such as Pennsylvania, New Mexico, Virginia, and New Hampshire, where abortion rights are currently supported under state law but not enshrined in state constitutions. Abortion advocates may also focus on Iowa, South Carolina, and Florida, where recent court decisions have largely settled the law, but further litigation is possible. Restrictive states also continue to legislate additional restrictions on access to abortion.
The majority of states can be expected to continue on their current trajectory: more protective states may continue to enact abortion protections, and more restrictive states may continue to enforce existing bans and expand prohibitions. In 2025, the focus of both protective and restrictive laws likely will continue to expand. The initial wave of post-Dobbs policymaking primarily focused on a healthcare provider’s ability to perform an abortion and a patient’s right to receive an abortion. New laws and proposals now focus on topics such as assisting others in obtaining an abortion, telehealth prescribing of abortion medications, abortion funding, abortion rights of minors, and patient data privacy.
Trump administration policies and initiatives may impact more protective states’ abilities to provide abortion services. For instance, if the Comstock Act Memo is revoked, abortion-inducing medication may become scarce or difficult to obtain through the mail, even from a provider in a protective state to a patient in another protective state. If interpreted even more broadly by the administration, the Comstock Act could serve as a catalyst for a national abortion ban, which would almost certainly face legal challenges. While the Trump administration has not yet asked Congress for a national abortion ban, the EO that Trump signed recognizing two sexes includes personhood language regarding life beginning “at conception,” signaling that additional changes may be proposed at both the federal and state policy levels regarding fetal personhood and attendant rights. Such changes would likely result in legal challenges in federal and state courts.
IVF SERVICES WILL CONTINUE TO EXPAND BUT MAY FACE FRICTION WITH ABORTION PROHIBITIONS AND CERTAIN TRUMP ADMINISTRATION PRIORITIES
State abortion laws have somewhat solidified following Dobbs, but many laws remain unclear as to their impact on IVF providers. Many states have abortion prohibitions that predate IVF, some of which define “unborn child” from the moment of fertilization or conception. Other laws are ambiguous but contain language that arguably protects a fetus at any stage of development. Since Dobbs, state attorneys general in Arkansas, Oklahoma, Wisconsin, and other states have indicated that they will not pursue IVF providers using state abortion bans, and the Trump administration has issued an EO calling for expanded access to IVF. However, the state-level laws remain ambiguous, and there is a risk that courts may interpret such laws to apply to embryos or otherwise impact IVF access. Moreover, the EO raising the issue of fetal personhood may create friction for efforts to expand access to IVF.
In February 2024, the Alabama Supreme Court became the first state supreme court to definitively rule that “unborn children” includes cryogenically frozen IVF embryos. The court held an IVF clinic liable under the state’s wrongful death statute after an incident in which frozen IVF embryos were destroyed. The decision initially caused several IVF providers in the state to pause services until two weeks later, when the legislature passed a specific exception to the statute for IVF providers. Even though the status quo was quickly restored, both providers and patients were significantly impacted by the period of uncertainty. In 2025 and beyond, other states could face similar test cases. In response to public support for reproductive technology, some restrictive states have proposed legislation to address, for example, the use of assistive reproductive technology and selective reduction.
At the same time, insurance coverage for IVF and other fertility treatments has expanded and will likely continue to do so in 2025. Approximately 22 states now mandate that insurance plans provide some combination of fertility benefits, fertility preservation, and coverage for a number of IVF cycles. After July 1, 2025, all large employers in California must provide insurance coverage for fertility treatments, including coverage for unlimited embryo transfers and up to three retrievals. 2025 will also bring expanded IVF coverage options for federal employee insurance plans.
THE RIGHT TO CONTRACEPTION WILL REMAIN VULNERABLE TO STATE LAWMAKING AND COURT CHALLENGES
Although the Dobbs majority opinion states that the “decision concerns the constitutional right to abortion and no other right,” and that “nothing in [the Dobbs] opinion should be understood to cast doubt on precedents that do not concern abortion,” doubt remains as to other women’s health rights. In his concurrence in Dobbs, Justice Clarence Thomas expressed interest in revisiting prior Supreme Court of the United States decisions upholding rights other than the right to abortion, such as the right to contraception upheld in Griswold v. Connecticut.
In response to the Thomas concurrence, the federal Right to Contraception Act was introduced. The act would have enshrined a person’s statutory right to contraception and a healthcare provider’s right to provide contraception. The act passed the US House of Representatives, but the US Senate version was unable to overcome a filibuster in June 2024. Federal efforts to protect the right to contraception are unlikely to pass in the new Congress.
Although federal action is unlikely, certain states have already protected the right to contraception under state law. Approximately 15 states and the District of Columbia currently have some form of protection for the right to contraception either by statute or under the respective state’s constitution. Under the new administration, state legislative action likely will increase with respect to the right to access contraception. Certain states with restrictive abortion policies, such as South Carolina, have proposed modifications to their abortion restrictions to explicitly protect the use of contraceptives.
WHAT STEPS SHOULD STAKEHOLDER CONSIDER TAKING?
Any company whose services touch on reproductive health or women’s health should engage in a risk assessment of their business and the ways in which the Trump administration may affect their ability to operate without complications. Although the first two months of EOs and other actions from the administration have not drastically altered the landscape for reproductive health across the country, access to reproductive and women’s health is likely to evolve over the next four years. We are closely monitoring these developments and will continue to forecast the ways in which this could impact stakeholders in the industry.

Virginia Governor Vetoes AI Bill As States Struggle to Approve Regulations

Virginia Governor Glenn Youngkin vetoed an artificial intelligence (“AI”) bill on March 24 that would have regulated how employers used automation in the hiring process. While the veto relieves employers of a new layer of regulation, the bill represented one of several state-level efforts to prevent potential harmful uses of AI in the employment context.
The Virginia General Assembly passed the “High-Risk Artificial Intelligence Developer and Deployer Act” during the 2025 legislative session. The bill would have regulated both creators and users of AI technology across multiple use cases, including employment. It defined “high-risk artificial intelligence” to cover any AI systems intended to make autonomous consequential decisions, or serve as a substantial factor in making consequential decisions. As relevant to the employment context, “consequential decisions,” included decisions about “access to employment.” 
The law would have required Virginia employers to implement safeguards to prevent potential harm from “high-risk” AI, including adopting a risk management policy and conducting an impact assessment for the use of the technology. It also would have required users of covered AI systems to disclose their use to affected consumers, including employment applicants. The bill called for enforcement by the Virginia Attorney General only, with designated civil penalties for violations and no private right of action. But it also specified that each violation would be treated separately, so it created the potential for significant penalties if, for example, an employer failed to disclose its use of AI to a large group of applicants, resulting in a $1,000 penalty for every applicant impacted.
Youngkin said he vetoed the bill because he feared it would undermine Virginia’s progress in attracting AI innovators to the Commonwealth, including thousands of new tech startups. He also said existing laws related to discrimination, privacy and data use already provided necessary consumer protections related to AI. Had the bill avoided the governor’s veto pen, Virginia would have joined Colorado as the first two states to approve comprehensive statutes specifically governing the use of AI in the employment context. The Colorado law, passed in 2024, will become effective on February 1, 2026 and has many similarities to the bill Youngkin vetoed, including requirements that users of high-risk AI technology exercise reasonable care to prevent algorithmic discrimination. 
Other states have laws that touch on AI-related topics, but lack the level of detail and specificity contained in the Colorado law. In several more states, attempts to regulate the use of AI in the employment context are meeting similar fates to Virginia’s law. For example, Texas legislators recently abandoned efforts to pass an AI bill modelled after the Colorado legislation. Similar bills have failed or appear likely to fail in Georgia, Hawaii, Maryland, New Mexico and Vermont. And even in states with more employment-related regulations like Connecticut, Democratic Governor Ned Lamont has resisted efforts by lawmakers to push through AI regulations. The exception to the trend may be California, where legislators are continuing to pursue legislation – A.B. 1018 – that closely resembles both the Colorado and Virginia bills with even steeper penalties. 
In all, states remain interested in regulation of emerging AI tools, but have yet to align on the best way to handle such regulation in the employment context. Still, employers should use caution when using automated tools or outsourcing decision-making to third parties that use such technology. Existing laws, including the Fair Credit Reporting Act and Title VII of the Civil Rights Act, still apply to these new technologies. And while momentum for new state-level AI regulation seems stalled, employers should monitor state level developments as similar proposed laws proceed through state legislatures.

Disability Discrimination Charges Involving Neurodivergence Are Rising, According to EEOC Data

As diagnoses of neurodiversity become more common, employers are facing more disability discrimination complaints from neurodivergent workers, according to recent data from the U.S. Equal Employment Opportunity Commission (EEOC).

Quick Hits

EEOC data shows a rise in disability discrimination charges related to neurodiversity in recent years.
The federal Americans with Disabilities Act (ADA) covers certain conditions associated with neurodivergence.
It is unlawful to discriminate, harass, or retaliate against workers with disabilities related to neurodivergence.

Neurodiversity generally refers to medical conditions that cause the brain to function differently than the typical pattern. These conditions include autism, attention-deficit hyperactivity disorder (ADHD), dyslexia, sensory processing disorder, and Tourette’s syndrome. In many cases, people with those conditions meet the ADA definition of disability. The ADA covers physical and mental impairments that substantially impair a major life activity, such as sleeping, eating, speaking, and reading.
EEOC merit resolutions related to autism more than doubled from 0.4 percent of total merit resolutions in 2016 to 1.5 percent of total merit resolutions in 2023. Likewise, merit resolutions related to “other neurological impairments” accounted for 4.2 percent of total merit resolutions in 2023, up from 3.2 percent in 2016.
The increase in EEOC charges may reflect societal trends as Americans became more aware of neurodiversity, and more children and adults received diagnoses related to neurodiversity in recent years.
About 11 percent of U.S. children aged three to seventeen years had ever been diagnosed with ADHD in 2022, up from 8 percent in 2008, according to the U.S. Centers for Disease Control and Prevention (CDC). The percentage of children diagnosed with autism more than quadrupled from 0.006 percent in 2000 to 0.028 percent in 2020, according to the CDC.
A variety of reasonable accommodations could be helpful for a neurodivergent worker, depending on the symptoms, the severity of the condition, and the type of job. Employers can use the interactive process to identify accommodations that would be suitable for the individual without being an undue hardship for the employer.
If an employee has an ADA-qualified disability involving neurodivergence, it is illegal to discriminate or harass that employee because of the employee’s condition. It is also unlawful to retaliate against that employee for reporting an ADA violation.
10 Tips for Accommodating Employees With Autism
Employers may wish to review their written policies and practices to ensure that they are adequate to prevent discrimination, harassment, and retaliation against workers who have an ADA-qualified disability related to neurodivergence.
Regarding employees with autism, employers can consider a variety of reasonable accommodations, depending on the individual needs and the nature of the job. Here are ten possibilities to consider:
1. Flexible Work Schedules: Allowing adjustments to start/end times or offering part-time options can help reduce stress and accommodate sensory or routine preferences.
2. Quiet Workspaces: Providing a low-noise area, noise-canceling headphones, or a private office can minimize sensory overload.
3. Clear Communication: Offering written instructions, checklists, or visual aids alongside verbal directions can improve understanding and task completion.
4. Structured Environment: Maintaining consistent routines, predictable schedules, and advance notice of changes can help reduce anxiety.
5. Sensory Adjustments: Modifying lighting (e.g., reducing fluorescent lights), allowing comfortable clothing, or minimizing strong odors can address sensory sensitivities.
6. Job Coaching or Mentorship: Assigning a supportive supervisor or peer to provide guidance and feedback can help employees learn job tasks and workplace norms.
7. Breaks as Needed: Permitting short, scheduled breaks to recharge can help manage fatigue or prevent becoming overwhelmed.
8. Task Modification: Breaking tasks into smaller steps, focusing on strengths (e.g., detail-oriented work), or adjusting nonessential duties can enhance productivity.
9. Assistive Technology: Tools like speech-to-text software, organizational apps, or timers can support focus and communication.
10. Social Support: Offering training for coworkers on autism awareness or excusing noncritical social events can ease interpersonal pressures.

Another Court Partly Blocks DEI-Related Executive Orders; U.S. Government Continues to Stay Its Course

On Thursday, March 26, 2025, a federal judge for the Northern District of Illinois issued a Temporary Restraining Order (TRO) prohibiting enforcement of portions of Executive Order 14151 (“the J20 EO”) and Executive Order 14173 (“the J21 EO”), two of President Trump’s first directives seeking to eliminate Diversity, Equity, and Inclusion (DEI), previously explained here.
This order has implications for federal contractors and grant recipients nationwide, at least for now.
The Case
The case, Chicago Women in Trades v. Trump et. al., was brought by a Chicago-based association, Chicago Women in Trades (CWIT), that advocates for women with careers in construction industry trades. Federal funding has constituted forty percent of CWIT’s budget. After the issuance of the J20 and J21 EOs, CWIT received an email from the U.S. Department of Labor’s (DOL) Women’s Bureau stating that recipients of financial assistance were “directed to cease all activities related to ‘diversity, equity and inclusion’ (DEI) or ‘diversity, equity, inclusion and accessibility’ (DEIA).” Similarly, one of its subcontractors emailed CWIT to immediately pause all activities directly tied to its federally funded work related to DEI or DEIA. CWIT brought the action against President Trump, the DOL, and other agencies alleging, among other things, that its Constitutional rights were violated by various provisions in both EOs. For example, CWIT argued that the J20 EO targeted “DEI,” “DEIA,” “environmental justice,” “equity,” and “equity action plans” without defining any such terms. This lack of definition, according to CWIT, makes it difficult to understand what conduct is permissible and what is not.
Contractor “No DEI” Certifications Blocked
The ruling enjoins the DOL and, by extension, its Office of Federal Contract Compliance Programs (OFCCP) from enforcing two discrete portions of the Executive Orders: (1) Section 2(b)(i) of the J20 EO (the “Termination Provision”), authorizing the agency to terminate a government contract or grant based on the awardee’s alleged DEI-related activities; and (2) Section 3(b)(iv) of the J21 EO (the “Certification Provision”), requiring federal contractors and grant recipients to certify that they do not operate any program promoting unlawful DEI. A Memorandum Opinion and Order accompanying the TRO emphasizes that its ruling constrains only one agency, at least for now.
The injunction against the Termination Provision is also narrow in that it applies only to the plaintiff, CWIT. Specifically, the TRO blocks the DOL from taking any adverse action related to any contracts with the plaintiff. The TRO further forbids the federal government from initiating any enforcement action under the False Claims Act against the plaintiff. Nevertheless, the TRO does carry nationwide implications, in that it prohibits the DOL from requiring any contractor or grantee to make any certification or other representation pursuant to the terms of the J21 EO’s Certification Provision.
Other Initiatives to Curb DEI Continue
Despite judicial opinions criticizing the EOs, most notably in a case currently under review by the U.S. Court of Appeals for the Fourth Circuit, governmental agencies continue to move forward with actions supportive of the EOs, and enforcement against public and private entities for DEI initiatives or other practices. For example:

On March 19th, the U.S. Equal Employment Opportunity Commission and the U.S. Department of Justice (DOJ) issued multiple documents explaining the administration’s view of DEI as a form of workplace discrimination.
On March 26th, the DOJ issued a Memorandum to all U.S. law schools regarding race-based preferences in admissions and employment decisions.
On March 27th, two agencies issued press releases announcing investigations: the U.S. Department of Health and Human Services announced action against an unnamed “major medical school in California,” and the DOJ issued a press release stating that it is looking into whether four major universities in California use “DEI discrimination” in their admissions practices. The DOJ announcement concludes that “compliance investigations into these universities are just the beginning of the Department’s work in eradicating illegal DEI and protecting equality under the law.”
On March 28th, the administration made headlines across Europe after two French newspapers published the template of a letter and accompanying form sent by the U.S. Department of State to companies in France, Belgium, Italy, and other European Union nations that do business with the federal government, demanding compliance with the J21 EO and requesting completion of a form to certify “compliance in all respects with all applicable federal anti-discrimination law…” and that the contractor does not “operate any programs promoting Diversity, Equity, and Inclusion that violate any applicable Federal anti-discrimination laws.”

What’s Next?
The court will consider further injunctive relief in the coming weeks, and may convert the TRO into a preliminary injunction after a hearing scheduled for April 10, 2025. At present, at least a dozen lawsuits have been filed challenging the Executive Orders regarding DEI, while Executive Branch agencies continue to pursue enforcement activities aligned with the EOs and administration policy.

Federal Agencies Cracking Down on DEI/DEIA

In the first two months of President Trump’s second term, his administration has engaged in a full-throated repudiation of “illegal” diversity, equity, and inclusion (“DEI”) and diversity, equity, inclusion, and accessibility (“DEIA”) programs.1
The Trump Administration issued a January 21, 2025 executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (“EO 14173” – click here to read our recent client alert on this executive order). Since then, the Attorney General issued a memo titled “Ending Illegal DEI and DEIA Discrimination and Preferences”, the Office of Personnel Management issued a memo titled “Further Guidance Regarding Ending DEIA Offices, Programs and Initiatives ”(the OPM memo”), and the Equal Employment Opportunity Commission and Department of Justice jointly issued a set of FAQs titled “What You Should Know About DEI-Related Discrimination at Work”.
Executive orders are directives to federal agencies and officials that must be followed but are not binding on those outside the government without legislative action. Inter-governmental memos and FAQs are also not binding on those outside the federal government. Nevertheless, the EOs and related documents give us insight into the direction the administration intends to take.
But what is an “illegal” DEI program? To date, this Administration has provided no guidance regarding what makes a DEI program illegal or even what constitutes a “DEI program.” Despite the lack of clarity, however, the law relating to DEI programs has not changed—if a DEI program was lawful under federal antidiscrimination laws on January 19, 2025, it remains lawful today.
Nevertheless, the lack of guidance, paired with the clear language this administration has used to vilify DEI programs in general, has caused fear, confusion, and uncertainty within organizations, leading some to eliminate DEI programs and/or scrub their websites of all references to DEI programs. Doing so, however, could subject an employer to employee backlash, including claims of discrimination, as well as public calls for boycott. Before deciding whether to eliminate, maintain, or enhance your diversity and inclusion programs, we recommend the following:

Assess your risk tolerance. 
Understand the laws in your state. Although this administration has signaled it expects compliance with its directives regardless of state law, the states may not agree.
Document the lawful purpose behind diversity and inclusion programs.
Document employment decisions carefully, setting forth the legitimate business reasons behind the decisions and showing that decisions are based on merit without regard to any protected characteristics.
Review your diversity and inclusion policies, programs, and training materials, including all public-facing DEI-related communications and disclosures. Consider whether to conduct this review under the umbrella of attorney-client privilege.
Review your investigation protocols, to encompass complaints and concerns about DEI programs and “DEI-related discrimination.”
Develop internal and external communications strategies, to mitigate legal risks while staying true to your culture and values.
Closely monitor legal developments.

Some DEI programs may contain elements that could be challenged under the law that existed on January 19, 2025, before President Trump’s second term began. Consider immediately eliminating those elements, which may include the following,

Employee resource groups/affinity groups that are only open or provide benefits to employees based on specific protected characteristics.
Scholarship, fellowship, internship, mentoring, and other professional development opportunities that are limited to or targeted at members of specific protected characteristics.
Goals, targets, or quotas based on protected characteristics.
Compensation targets based on the achievement of DEI objectives or goals.

Our team will continue to track and analyze significant directives and policy changes as they are announced. For further information, contact the authors of this alert or your WBD attorney.

1 For purposes of this Alert, both DEI and DEIA programs will be used interchangeably.

DOJ Withdraws 11 Pieces of Americans With Disabilities Act Title III Guidance: What Covered Businesses Need to Know

The Department of Justice (DOJ) withdrew 11 documents providing guidance to businesses on compliance with Title III of the Americans with Disabilities Act (Title III). The DOJ Guidance sets forth how the agency interprets certain issues addressed by Title III of the ADA. Although the guidance has been withdrawn, the law remains the same. Title III requires that covered businesses must provide people with disabilities with an equal opportunity to access the goods or services that they offer.
The DOJ says the documents were withdrawn in order to “streamline” ADA compliance resources for businesses consistent with President Trump’s January 20, 2025 Executive Order “Delivering Emergency Price Relief for American Families and Defeating the Cost-of-Living Crisis” . According to the DOJ’s press release, “Today’s withdrawal of 11 pieces of unnecessary and outdated guidance will aid businesses in complying with the ADA by eliminating unnecessary review and focusing only on current ADA guidance. Avoiding confusion and reducing the time spent understanding compliance may allow businesses to deliver price relief to consumers.”
The DOJ identified the following guidance for withdrawal:

COVID-19 and the Americans with Disabilities Act: Can a business stop me from bringing in my service animal because of the COVID-19 pandemic? (2021)
COVID-19 and the Americans with Disabilities Act: Does the Department of Justice issue exemptions from mask requirements? (2021)
COVID-19 and the Americans with Disabilities Act: Are there resources available that help explain my rights as an employee with a disability during the COVID-19 pandemic? (2021)
COVID-19 and the Americans with Disabilities Act: Can a hospital or medical facility exclude all “visitors” even where, due to a patient’s disability, the patient needs help from a family member, companion, or aide in order to equally access care? (2021)
COVID-19 and the Americans with Disabilities Act: Does the ADA apply to outdoor restaurants (sometimes called “streateries”) or other outdoor retail spaces that have popped up since COVID-19? (2021)
Expanding Your Market: Maintaining Accessible Features in Retail Establishments (2009)
Expanding Your Market: Gathering Input from Customers with Disabilities (2007)
Expanding Your Market: Accessible Customer Service Practices for Hotel and Lodging Guests with Disabilities (2006)
Reaching out to Customers with Disabilities (2005)
Americans with Disabilities Act: Assistance at Self-Serve Gas Stations (1999)
Five Steps to Make New Lodging Facilities Comply with the ADA (1999)

The DOJ is also “raising awareness about tax incentives for businesses related to their compliance with the ADA” by prominently featuring a link to a 2006 publication.
The withdrawn guidance was prepared before the most recent Title III regulations went into effect in 2011 or deals with COVID-19. We do not expect the DOJ’s withdrawal of the guidance to have significant impact on business operations. However, Jackson Lewis attorneys, including Disability Access Litigation and Compliance group are closely monitoring the rapid developments from the federal agencies that impact our clients.