Constitutional Clash: Trump Administration Appeals Ruling Blocking DEI Orders As More Challenges Filed
While the Trump administration appeals a recent federal court ruling that blocked enforcement of key parts of two executive orders (EO) to restrict diversity, equity, and inclusion (DEI) programs and initiatives, the administration faces additional legal challenges alleging the DEI executive orders and an order claiming that there are only two sexes are constitutional.
The legal challenges to the EOs raise constitutional and other legal grounds to enjoin and limit the EOs and other executive actions, which have caused significant compliance concerns for federal contractors, federal money recipients and private sector employers.
Quick Hits
The Trump administration is appealing a preliminary injunction that blocks key components of two executive orders aimed at restricting DEI programs.
The administration also faces at least three additional recently filed lawsuits from civil rights and LGBTQ+ advocacy groups challenging the constitutionality of these orders.
The lawsuits argue that the executive orders are unconstitutionally vague, violate the First Amendment by chilling free speech, and exceed the president’s authority, among other grounds, potentially impacting federal agencies, federal contractors, federal money recipients, and private-sector employers.
Despite the injunction, the executive orders have already caused significant disruptions to diversity, equity, inclusion, and accessibility (DEIA) initiatives, prompting some federal agencies to revise guidance to comply with the administration’s directives.
On February 24, 2025, the Trump administration filed a notice of appeal to challenge the February 21 preliminary injunction ruling holding key portions of the EOs are likely unconstitutionally vague and violate the First Amendment. The administration also filed a motion to stay the injunction’s enforcement pending the appeal.
Specifically, the preliminary injunction ruling blocked enforcement of provisions requiring federal agencies to terminate “equity-related grants or contracts,” requiring federal contractors to certify under potential False Claims Act (FCA) liability that they do not operate unlawful DEI programs and to certify they do not engage in unlawful discrimination, and directing the attorney general to target DEI programs in the private sector.
The ruling came in a lawsuit filed in the U.S. District Court in Maryland on February 3 by a coalition of DEI advocates—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.
The groups targeted two of President Donald Trump’s EOs signed in his first days in office on January 20 and 21, 2025—EO 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” and EO 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”
New Challenges
Many legal challenges have been made to Trump’s EOs. While the Trump administration seeks to appeal the preliminary injunction in the Maryland lawsuit, it faces at least three more legal challenges to the DEI orders.
On February 26, 2025, the nonprofit group Chicago Women in Trades filed a lawsuit in the U.S. District Court for the Northern District of Illinois.
On February 20, 2025, a group of LGBTQ+ rights groups and AIDS activists represented by Lambda Legal Defense and Education Fund, Inc. filed a similar challenge in the U.S. District Court for the Northern District of California.
On February 19, 2025, civil rights groups—the National Urban League (NUL), the National Fair Housing Alliance (NFHA), and the AIDS Foundation of Chicago (AFC)—filed a lawsuit on February 19, 2025, in the U.S. District Court for the District of Columbia.
Like the Maryland case, the new suits name President Trump and several federal agencies, including the U.S. Department of Labor (DOL), the Office of Federal Contract Compliance Programs (OFCC), and the U.S. Department of Justice, among others. They seek injunctions to block the EOs and force agencies to reverse their actions to implement the orders.
Both the Lambda Legal and the National Urban League lawsuits additionally target the president’s January 20, 2025, EO 14168, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which outlined the federal government’s new policy to only “recognize two sexes, male and female.”
The lawsuits raise similar claims:
Unconstitutionally Vague—The suits alleged that the EOs contain vague and undefined language that fails to provide clear guidance on prohibited DEI or diversity, equity, inclusion, and accessibility (DEIA) activities.
First Amendment—The suits alleged that the EOs are designed to chill speech disfavored by the administration, resulting in viewpoint discrimination prohibited by the First Amendment. They allege the EOs put organizations in a position where they must decide whether to continue their missions or lose federal funding.
Due Process—The suits further alleged that the executive orders violate the Due Process Clause of the Fifth Amendment because they are impermissibly vague, suppress free speech, and are discriminatory against protected groups.
Ultra Vires—The suits also alleged that the EOs exceeded the president’s authority and usurped legislative functions.
Impact on DEI Programs
Despite the preliminary injunction, President Trump’s EOs have already significantly disrupted lawful DEIA with both federal contractors/grant recipients and the private sector. Even though enjoined, the EOs continue to create concerns for companies that they could be targeted for programs or initiatives that could arguably be classified as “illegal” DEIA despite that term being undefined in the EOs.
Federal agencies have begun rescinding or revising guidance to align with the president’s EOs. For instance, the U.S. Equal Employment Opportunity Commission (EEOC) has rolled back much of the EEOC’s prior guidance related to issues of gender identity discrimination and harassment against LGBTQ+ individuals.
Notably, the recent injunction does not block portions of the EOs that directed the attorney general to prepare reports and pursue enforcement actions to stop DEIA programs and initiatives in the private sector. U.S. Attorney General Pamela Bondi has already said the Department of Justice (DOJ) Civil Rights Division “will investigate, eliminate, and penalize illegal DEI and DEIA” programs in the private sector and educational institutions that receive federal funds.”
Next Steps
The outcome of these cases could have far-reaching implications for DEIA programs and the ongoing civil rights issues in the United States. As the cases progress, employers may want to monitor how the courts address the complex constitutional and administrative law issues in these lawsuits.
Trump Administration’s Title IX Changes Revert Regulations Back to 2020, and Further Changes Are Possible
On January 31, the U.S. Department of Education (“DOE”) confirmed that, effective immediately and applicable to all open Title IX investigations, it will enforce the first Trump administration’s 2020 Title IX regulations (“the 2020 Rule”).[1]
This comes as no surprise to higher educational institutions, many of whom have been preparing to apply the 2020 rule since January 9, 2025, when a federal district court vacated the Biden-era Title IX regulations in Tennessee v. Cardona, and others of whom never stopped applying the 2020 rule due to a wide-ranging injunction issued by a Kansas U.S. District Court in 2024.[2] However, when viewed in context with other executive orders, the January 31 DCL both clarifies and raises questions as to how those rules apply going forward.
First, the January 31 DCL clarifies that educational institutions are expected to implement the 2020 rule immediately, including for cases that are ongoing. Immediate implementation means that institutions should look at any processes that are currently under way under their 2024 rule, and ensure that the process has not deprived the parties of any rights that they would have had under the 2020 rule.
The January 31 DCL is not explicit as to how DOE defines sex under Title IX, but it seems likely that this definition does not include gender identity. The January 31 DCL as issued initially stated that reading “sex” to include gender identity, sex stereotypes, and sexual orientation was inconsistent with Title IX. However, the DOE issued a revised version of the DCL on February 4 which removed this language. Educational institutions should note that the Kentucky U.S. District Court held in Tennessee vs. Cardona that the definition of “sex” under Title IX did not include gender identity, and the administration is not appealing this decision. They should also be aware that the administration, through a January 20 executive order, has directed all executive agencies including the DOE to interpret “sex” as “an individual’s immutable biological classification as either male or female,” not inclusive of gender identity. What remains to be seen is whether state laws that do protect gender identity will be seen as conflicting with Title IX, or whether institutions in those states will be able to protect discrimination based on biological sex under Title IX, and gender identity under state law.
What does the January 31st DCL mean for higher educational institutions?
Most institutions should have little difficulty turning back to their 2020 policies, but as they do, they should also consider any developments in state law or other regulations, including those requiring protections based on gender identity. Institutions should be mindful that more clarification and guidance is likely forthcoming from the DOE within the coming weeks.
One aspect of the 2024 policies that institutions may wish to keep in place are requirements to accommodate and prohibit discrimination on the basis of pregnancy and related conditions. While the specific requirements of the 2024 rule are no longer in place, courts have long read Title IX as prohibiting discrimination based on pregnancy and related conditions, and the 2024 regulations provided a comprehensive way to prevent such discrimination. The DOE has not issued any guidance on this subject, and does not seem poised to do so.
[1] 85 Fed. Reg. 30026 (2020).
[2] Tennessee v. Cardona, No. CV 2:24-072-DCR, 2025 WL 63795 (E.D. Ky. Jan. 9, 2025), as amended (Jan. 10, 2025)(Finding that the DOE exceeded its statutory authority by redefining “on the basis of sex” inconsistently with what the court found is Title IX’s express language and purpose: to combat discrimination against women, and based on the Spending Clause and First Amendment principles of vagueness and overbreadth, the 2024 Rule is arbitrary and capricious, and constitutionally infirm); See 89 Fed. Reg. 33474 (2024).
Dictionary Definitions Prove Decisive – SCOTUS Today
Today was a day of unanimity at the U.S. Supreme Court, and what the Justices were unanimous about was a textually literal approach to applying dictionary definitions to resolve statutory disputes.
Several years ago, in a lecture series named after the late Justice Antonin Scalia at Harvard, Justice Elena Kagan pronounced, “We’re all textualists now.” And at least on some days, that declaration proves true. Today is one of those days.
We start with Dewberry Group, Inc. v. Dewberry Engineers Inc. Dewberry Engineers successfully sued the similarly named Dewberry Group, a competing real estate developer, for trademark infringement under the Lanham Act. The Lanham Act provides for a prevailing plaintiff to recover the “defendant’s profits” derived from the improper use of a mark.15 U. S. C. §1117(a). Dewberry Group provides services that facilitate the generation of rental income from properties owned by separately incorporated affiliates, and that goes on the affiliates’ books. Dewberry Group is only paid fees, and because those fees are set below market rate, it has operated at a loss for many years, surviving only because the owner of both Dewberry Group and its affiliates has made infusions of cash. Given what it saw as an “economic reality,” the U.S. District Court for the Eastern District of Virginia treated Dewberry Group and its affiliates “as a single corporate entity” for purposes of calculating the profit-based award, totaling the affiliates’ profits from the years in which the infringement took place. This produced an award of almost $43 million. Writing for a unanimous Court, the avowed textualist Justice Kagan opined that “[i]n awarding the ‘defendant’s profits’ to the prevailing plaintiff in a trademark infringement suit under the Lanham Act, §1117(a), a court can award only profits ascribable to the ‘defendant’ itself. And the term ‘defendant’ bears its usual legal meaning: the party against whom relief or recovery is sought—here, Dewberry Group.” Because Dewberry Engineers did not include Dewberry Group’s affiliates as defendants, the affiliates’ profits are not disgorgeable “defendant’s profits” as the term is ordinarily understood. In other words, only the profits attributable to the actual defendant were subject to award.
Separately concurring, Justice Sotomayor cautioned that there might be other cases in which “principles of corporate separateness do not bind courts to economic realities.” She goes on to describe two ways in which a defendant’s profits might be calculated despite certain “accounting arrangements” that might obscure actual profits. But that is for future cases. Here, Dewberry Engineers lost 9-0.
The dictionary played an even more pronounced role in another unanimous opinion in the case of Waetzig v. Halliburton Energy Services, Inc. Mr. Waetzig was terminated from employment by Halliburton and brought suit claiming a violation of the Age Discrimination in Employment Act, 29 U. S. C. §§ 621 et seq. (ADEA). Waetzig agreed with Halliburton to submit his claim for arbitration, but he did not ask the District of Colorado to stay his ADEA lawsuit. Instead, he dismissed the case under Fed. R. Civ. P. 41(a), under which a plaintiff may dismiss his case “without a court order” if he serves “a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment.” Rule 41(a)(1)(A)(i). Halliburton had not yet served an answer or otherwise filed motions, so the dismissal was effective without any court action. Moreover, since this was the first time Waetzig had dismissed his claims, his dismissal was presumptively “without prejudice.” Rule 41(a)(1)(B). Thus, he had preserved his right to refile the same claims in the future. When he lost the arbitration, he returned to court, not to file a new case but to reopen and argue in the old, dismissed one that the arbitrator’s decision should be vacated because of certain alleged rules violations. The problem that the lower court faced was the fact that the Rule 41(a) dismissal without prejudice terminated his case. So, how could he file a motion in a case that no longer existed? Fed. R. Civ. P. 60(b) provides the answer, and that answer saved the day for Mr. Waetzig. To quote Justice Alito, writing for the whole Court, Rule 60(b) permits a court, “[o]n motion and just terms,” to “relieve a party . . . from a final judgment, order, or proceeding.” A court may do so for six enumerated “reasons,” including “mistake, inadvertence, surprise, or excusable neglect.” See Rule 60(b)(1). The general “purpose” of the Rule, we have said, is “to make an exception to finality.” Gonzalez v. Crosby, 545 U. S. 524, 529 (2005). The Rule “attempts to strike a proper balance between the conflicting principles that litigation must be brought to an end and that justice should be done.” 11 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2851, p. 286 (3d ed. 2012).
The essence of the holding is that text, context, history, and the dictionary mandate that a case that is voluntarily dismissed without prejudice under Rule 41(a) counts as a “final proceeding” under Rule 60(b). Thus, the Court reversed the U.S. Court of Appeals for the Tenth Circuit and remanded the case to the District Court, which could then address certain jurisdictional arguments made by Halliburton.
One parting note: Following the release of today’s opinions, the Court heard arguments in Ames v. Ohio Department of Youth Services, in which the issue presented is “[w]hether, in addition to pleading the other elements of an employment discrimination claim under Title VII of the Civil Rights Act of 1964, a majority-group plaintiff must show ‘background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.’” I mention this case not just because it will be of interest to the many lawyers who read this blog who counsel and litigate with respect to Title VII but also because recent executive orders issued by President Trump concerning diversity, equity, and inclusion, as well as other affirmative action efforts, are likely to foment reverse discrimination cases brought by individual plaintiffs and government agencies pursuant to the employment discrimination laws and even as false certification claims under the federal False Claims Act. Indeed, we are already seeing such cases. So, watch the Ames case carefully to see whether heightened standards of proof might be required in similar cases.
Minnesota Court Rules Websites are Public Accommodations under ADA
Joining a number of courts across the country that have ruled similarly, the District Court for District of Minnesota held recently that the Americans with Disabilities Act’s (ADA) prohibition against discrimination in “places of public accommodation” applies to websites. In Frost v. Lion Brand Yarn Company, the plaintiffs, who are both legally blind, asserted that the functionality of the defendant’s retail website was “limited,” at best, for individuals with vision-related disabilities. The plaintiffs, who have filed numerous similar cases against other national retailers, filed a class action lawsuit in federal court, alleging that the defendant violated Title III of the ADA, as well as state law, by failing to provide its website’s content and services in a manner that is compatible with screen reading aids.
Quick Hits
A federal court in Minnesota recently ruled that the ADA’s “public accommodations” provision applies to websites, aligning with other courts that have made similar decisions.
The plaintiffs who filed the suit claimed that the defendant’s website was not accessible to individuals with vision-related disabilities.
The court rejected the argument that the ADA only applies to physical places of public accommodation, emphasizing the law’s broad evolving nature and denying the defendant’s motion to dismiss the case.
The defendant filed a motion to dismiss the lawsuit, arguing that Title III of the ADA only applies to “places of public accommodation,” and that a website is not a “place.” Although the issue was one of first impression in the Eighth Circuit Court of Appeals, which includes Minnesota, several other circuit courts have addressed the issue, and while the Third, Sixth, and Ninth Circuits have ruled that places of public accommodation include only places with physical structures, the First and Seventh Circuits have ruled that the law is not so limited. Those circuit court decisions all involved insurance benefits, rather than websites, however. In contrast, many federal district courts across the country have addressed the issues specifically as to websites but have issued inconsistent decisions.
The Minnesota District Court analyzed the issue by examining, and rejecting, those cases from other jurisdictions that had held “places of public accommodation” did not include websites. The court concluded that the circuit courts’ “physical structure” requirement was dicta, i.e., not essential to the decisions and therefore not entitled to any deference. Moreover, to the extent that those decisions were on point, the court respectfully disagreed with them for several reasons.
First, the court reasoned, by reading the ADA so narrowly, those courts had failed to consider the law’s broad, remedial nature. Second, the court noted that Congress had not expressly limited the law to places with physical structures. Third, the court rejected any reliance on dictionary definitions of “place,” finding those definitions to be inconclusive. In addition, the court noted that the legislative history of the ADA, which Congress enacted prior to the advent of the internet, indicated that lawmakers intended the act to “adapt to changes in technology.” Finally, the court found it insignificant that Congress has failed to amend the ADA to expressly include websites, noting that the lack of any amendment “could just as easily reflect Congress’ understanding that no amendment was necessary.”
Based on those considerations, the court agreed with those courts that have held that a stand-alone website falls within the meaning of a “place of public accommodation” as defined in Title III of the ADA. Therefore, the court denied the defendant’s motion to dismiss the case.
Key Takeaways
While district court decisions are not binding in other jurisdictions, or even district court judges in the same district for that matter, this Minnesota case is an example of what the court described as a “growing number” of district courts that have issued similar holdings. Certainly, the case sends a strong message to businesses whose goods or services are available to online shoppers in Minnesota, regardless of the business’ location, that if their websites do not function properly for visually-impaired consumers using screen-reader technology, they could be named as defendants in a class action lawsuit, particularly given the litigious nature of the certain “serial plaintiffs” in such Title III cases. Businesses that sell their products or services nationwide via websites may want to audit those sites to make sure they function smoothly with such technology, to try to avoid that risk.
Lots of Action – The First Weeks of the Trump Presidency
It has proven to be an eventful first month of the new administration with multiple executive orders, memoranda issued, and lawsuits filed in response. Things are moving quickly and should be continually monitored for developments occurring on a weekly (if not daily) basis. This article provides a brief – and far from exhaustive – overview of the employment-related actions and reactions.
Diversity, Equity and Inclusion
On January 21, 2025, the president issued Executive Order 14173 aiming to eliminate all DEI and DEIA policies and programs within the federal government and private sector. On February 5, 2025, Attorney General Pam Bondi issue a memorandum directing the DOJ to initiate broad investigations of private company for civil rights violations related to diversity, equity, and inclusion.
Multiple lawsuits have been filed against the executive order. Plaintiffs, including the National Association of Diversity Officers in Higher Education among many others, filed suit in the United States District Court for the District of Maryland [Case No. 1:25-cv-00333] seeking to enjoin and declare the executive orders unconstitutional. On February 21 the presiding judge issued an opinion granting parts of the preliminary injunction.
In addition, attorneys general from 16 states issued an open letter titled “Multi-State Guidance Concerning Diversity, Equity, Inclusion, and Accessibility Employment Initiatives” in response to Executive Order 14173.
At-Will Employment for Federal Employees
On January 20, 2025, the president issued Executive Order 14171 to reclassify many federal employees as at-will employees. This would make it easier to terminate their employment as they would no longer be in the “competitive service” category with the benefit of job protections and instead would be in the “schedule policy/career” category. Federal employees have previously not been considered at-will employees with due process protections under the Civil Service Reform Act of 1978.
Multiple lawsuits have been filed by federal labor unions challenging Executive Order 14171. The National Treasury Employees Union, Government Accountability Project, and AFF-CIO each filed separate lawsuits in the D.C. federal court [case number 1:25-cv-00170], and the Public Employees for Environmental Responsibility filed a separate action [case no. 8:25-cv-00260] in federal court in Maryland.
Ending Remote Work for Federal Employees
The president issued his “Return to In-Person Work” executive order to end remote work for federal employees. Specifically, agencies were informed to have remote workers back in the office within 30 days, which looks to be the last day of February. Unless those employees are able to procure a waiver or special authorization to continue to work remotely, or accept the buyout offered by the administration (see immediately below), their employment will be terminated.
On January 28, 2025, federal employees were informed of a “Fork in the Road” offering employees the “deferred resignation” program of compensation until September 30, 2025, if they resign now, with an initial deadline of February 6, 2025. A lawsuit was filed by the American Federation of Government Employees in early February in federal court in Massachusetts seeking to enjoin the directive, but the presiding judge recently denied preliminary injunctive relief based on lack of standing and lack of subject matter jurisdiction.
Federal Government Recognizes Only Two Genders
On January 20, 2025, the president issued Executive Order 14168 stating that the federal government will only recognize two genders – male and female – removing the transgender and nonbinary categories. The order rescinded previous guidance from the EEOC under the previous administration that LGBTQ employees are legally protected under Title VII of the Civil Rights Act.
The president followed that up by issuing the “Keeping Men Out of Women’s Sports” Executive Order 14201 on February 5, 2025, directing the federal government to interpret and enforce Title IX under the gender definitions provided in Executive Order 14168 and applying it to women and girls’ sports. A lawsuit in New Hampshire federal court [case no. 1:24-cv-00251] that was originally filed in August 2024 is now seeking to amend and add claims related to the executive orders.
Nullifying Recent Collective Bargaining Agreements
On January 31, 2025, the president issued a memorandum entitled “Limited Lame-Duck Collective Bargaining Agreements That Improperly Attempt To Constrain the New President” nullifying collective bargaining agreements (CBAs) with federal agencies that were finalized during the last month of the previous administration. CBAs that might have negotiated telework for their employees are now called into question and likely will not be followed by federal agencies.
Federal unions have contended that such action violates binding CBA contracts.
IGs Fired
On January 24, 2025, the administration sent emails to several inspectors general (IGs) of federal departments and agencies informing them that their employment had been terminated and then they promptly lost access to their government email accounts and facilities.
On February 12, 2025, eight of the IGs filed a lawsuit in federal court in D.C. [case no. 1:25-cv-00415] alleging that the action violated the Inspector General Act, requiring Congressional notification and seeking a declaratory judgment that the terminations were legally ineffective and that they remained IGs.
NLRB Memos Rescinded
On February 14, 2025, acting National Labor Relations Board General Counsel William Cowen issued GC 25-05, which rescinded a series of memos issued by previous General Counsel Jennifer Abruzzo that set a new course for the agency during the Trump administration. The memo commented that the backlog of cases has grown “to the point where it is no longer sustainable. The unfortunate truth is that if we attempt to accomplish everything, we risk accomplishing nothing.” The GC 25-05 memo rescinded a total of 31 previous memos, either permanently or pending further guidance, related to remedies sought, the rights of student athletes under the NLRA, severance agreements, and non-compete agreements, among others.
Additionally, the president recently terminated the employment of NLRB member Gwynne Wilcox, a Democrat. Wilcox, whose term was supposed to run through 2028, filed a lawsuit [case no. 1:25-cv-00334] in federal court in D.C. against the president and NLRB Chairman Marvin Kaplan. Only days after filing the lawsuit, Wilcox filed a motion for expedited summary judgment. The matter remains pending. By firing Wilcox, the NLRB is now left without enough members to issue rulings until more members are appointed.
Stay Tuned
Much has taken place under the new administration, and the items mentioned (along with other orders and actions that may be forthcoming) should be monitored for continued developments. There is undoubtedly much more to come.
Illinois Pay Reporting Update for 2025: Additional Data Requirement as Enforcement Actions Increase
In 2021, Illinois amended the Equal Pay Act of 2003 by adding a requirement that covered employers submit demographic and wage data to the Illinois Department of Labor (IDOL). This requirement applied to private employers with one hundred or more Illinois employees that were also required to file EEO-1 reports. These covered employers were required to obtain an Equal Pay Registration Certificate (EPRC) from the Illinois Department of Labor (IDOL) during the initial EPRC registration process, which ended on March 24, 2024.
The EPRC certification must be renewed every two years meaning that many employers that obtained their certifications in 2023 will be required to file new EPRC applications during calendar year 2025. As 2025 moves forward, IDOL is making updates to the EPRC application process and discussing these changes in a series of webinars.
Quick Hits
Beginning in March 2025, employers applying for an EPRC certificate will be required to provide new data including hourly/salary status, base hourly rate for hourly workers, and to answer whether employees are covered by a collective bargaining agreement. IDOL will be providing a new data template in March to provide employers with further information regarding required data and corresponding formatting.
IDOL is stepping up enforcement efforts, as shown by an increasing number of notices of violations being entered.
Employers that have one hundred or more Illinois employees and that file EEO-1 reports must obtain an Equal Pay Registration Certificate every two years.
Employers must count employees physically working in Illinois, as well as fully remote employees who report to management in Illinois to determine if they must file the EPRC application.
During the first webinar held on February 13, 2025, IDOL representatives outlined the EPRC application process, as well as noted changes beginning with the 2025 filings. Here are selected highlights:
Employers will be required to provide new data fields in 2025, including stating whether employees are hourly or salary, providing hourly rates, and stating whether employees are covered by collective bargaining agreements.
An updated data template to be used for EPRC applications in 2025 is expected to be loaded onto IDOL’s EPRC landing page by March 31, 2025.
During the webinar, there were several questions about which hourly rate was appropriate in situations involving shift differentials and other circumstances. It is possible that IDOL will issue additional guidance on this point.
IDOL provided data showing the following numbers of EPRC approvals by fiscal year (FY): FY 2022—78; FY 2023—793; and FY 2024—3,175.
These numbers suggest that there will be a great deal of EPRC renewals in 2025 and in the spring of 2026.
There have been an increasing number of denials of EPRC applications. For instance, in FY 2022, there were 25 denials, while in FY 2024 there were 89 denials. In FY 2024, IDOL revoked 12 registrations.
IDOL is stepping up enforcement activities, issuing 15 notices of violations in FY 2024 and 63 notices of violations to this point in FY 2025.
IDOL officials made note of potential error flags that may occur for recertifying employers. These could be triggered by a change in job classification for a given title, a change in entity name, or the departure of an original contact person. They recommended contacting DOL@[email protected] to resolve these errors.
During the webinar, IDOL officials discussed potentially integrating the required compliance statement into the data upload process so that submission of a separate PDF may no longer be required in the submission process.
In addition to the information provided during the February 13 webinar, IDOL will publish a variety of resources to aid employers in the EPRC application process, including a pay data template, answers to frequently asked questions (FAQs), a template compliance statement, and other resources. These can be accessed through IDOL’s EPRC landing page. The next webinar being offered by IDOL is scheduled for March 3, 2025.
As a follow-up to this webinar, IDOL sent an email on February 21, 2025, providing notice to employers that are due to recertify in early 2025 that their deadline is being moved to March 31, 2025. This email stated that IDOL had already requested employers with early 2025 due dates to pause submitting data as updates were being made to the submission portal and filing data requirements. According to the email, IDOL had initially hoped to have everything ready by March 1, 2025. However, the email states that “out of an abundance of caution” IDOL is pushing back the date when all portal and other updates will be ready to March 31, 2025. Based on this change, IDOL is setting the deadline for paused recertification submissions to March 31, 2025. The email ends by stating that IDOL thanks employers for their patience as the EPRC is being updated.
Based on these new developments, now may be a good time for covered employers to consider making preparations to deal with these changes to the Illinois EPRC application process—particularly those employers that are required to file an application in 2025.
A Preliminary Injunction Does Not a “Prevailing Party” Make, Criminal Conviction Through Knowingly False Evidence Violates Due Process – SCOTUS Today
The U.S. Supreme Court decided two cases today, one of which, Lackey v. Stinnie, involved an action brought pursuant to 42 U. S. C. §1983 and should be of particular interest to the many readers of this blog who practice in the civil rights space.
The second case, Glossip v. Oklahoma, is a homicide case in which the state knowingly adduced false testimony. But does the Supreme Court have jurisdiction to reverse the conviction? The answer is that it does, though an interesting mix of Justices take more than 70 pages to explain their competing views.
Lackey v. Stinnie involved a group of drivers whose licenses were suspended under a Virginia law sanctioning drivers who had failed to pay court fines. They challenged the statute as unconstitutional, and the U.S. District Court for the Western District of Virginia granted a preliminary injunction prohibiting the Virginia Department of Motor Vehicles from enforcing it. Before the case could come to trial, the state legislature repealed the law and, by agreement of the parties, the case was dismissed as moot. 42 U. S. C. §1988(b) allows the award of attorneys’ fees to “prevailing parties” under §1983, and the plaintiffs sought them. Writing for himself and six other Justices (only Justice Jackson, joined by Justice Sotomayor dissented), the Chief Justice applied a strict view of the “American Rule” and held that “the plaintiff drivers, who had gained no more than preliminary injunctive relief before the action became moot—do not qualify as ‘prevailing part[ies]’ eligible for attorney’s fees under §1988(b) because no court conclusively resolved their claims by granting enduring judicial relief.” The Court began with text, recognizing that “prevailing party” is a legal term of art. At the time when §1988(b) became law, “contemporary dictionaries defined a prevailing party as one who successfully maintains its claim when the matter is finally resolved.” A preliminary injunction doesn’t do that, because it does not conclusively decide the case on the merits. Indeed, the preliminary injunction does no more than signal likely success on the merits, “along with factors such as irreparable harm, the balance of equities, and the public interest.” The preliminary injunction’s purpose is to preserve the status quo until a trial resolves the case, and “external events that render a dispute moot do not convert that temporary order into a conclusive adjudication on the merits that materially altered the legal relationship between the parties.”
An important caveat is found in a footnote pointing out that the question of who is a “prevailing party” is different for defendants and plaintiffs. Thus, the Court’s decision today “should not be read to affect our previous holding that a defendant need not obtain a favorable judgment on the merits to prevail, nor to address the question we left open of whether a defendant must obtain a preclusive judgment in order to prevail. See CRST Van Expedited, Inc. v. EEOC, 578 U. S. 419, 431−434 (2016). “As we have explained, ‘[p]laintiffs and defendants come to court with different objectives.’” Here, the Court rejects the claim accepted by the dissenters that the drivers “prevailed” because they ultimately succeeded in having the law repealed. However, they didn’t succeed in prosecuting an actual claim in a legal action. And taking that road “made all the difference.” Frost, R., “The Road Not Taken.”
Glossip v. Oklahoma is one of those cases that, if nothing else, defies common notions about how the Justices will align. Here is a case in which Justice Sotomayor delivered the majority opinion of the Court, having been joined by the Chief Justice and Justices Kagan, Kavanaugh, and Jackson. Justice Barrett concurred in part and dissented in part, and Justice Thomas, joined by Justice Alito, dissented. Justice Gorsuch recused because he had sat on an earlier version of the case while on the U.S. Court of Appeals for the Tenth Circuit. As noted, the Justices spared no ink in dealing with this murder case. Years after Glossip was convicted of murdering his boss and sentenced to death, and after he’d filed several habeas petitions, substantial doubt about his guilt emerged through an independent law firm investigation and the state discovering documents suggesting that the main witness against Glossip had testified falsely. Indeed, “[t]he attorney general determined that Smothermon [the prosecutor] had knowingly elicited false testimony from [the witness] Sneed and failed to correct it, violating Napue v. Illinois, 360 U. S. 264, which held that prosecutors have a constitutional obligation to correct false testimony.” However, the Oklahoma Court of Criminal Appeals denied an unopposed petition for a new trial, holding that the petition was barred by Oklahoma law and that the concession was “[n]ot based on law or fact” and did not constitute a Napue error because the defense likely knew that Sneed had testified falsely about his mental condition, and this condition somehow could be tolerated because Sneed was in denial about it. The Court’s majority was plainly unimpressed with this argument because, instead of remanding the case to state court to decide whether a new trial should be granted, the Court held that “[b]ecause ample evidence supports the attorney general’s confession of error in this Court, there also is no need to remand for further evidentiary proceedings.”
Two main aspects of the Court’s ruling should be noted. First, while the independent and adequate state ground doctrine precludes the Court from considering a federal question if the state court’s decision rests on an independent and adequate state law ground, the state court’s application of its procedural rule was not such a ground because it was premised on the rejection of the attorney general’s confession of error under Napue, which was based solely on federal law. However, Oklahoma precedent confirms that rejection of an attorney general’s confession generally has been made only after finding that it was unsupported by law and the record. “By making the application of the [the state’s procedural law] contingent on its determination that the attorney general’s confession of federal constitutional error was baseless, the [state court] made the procedural bar dependent on an antecedent ruling on federal law.”
Second, and more succinctly, the Court simply reversed the conviction and held that “[u]nder Napue, a conviction obtained through the knowing use of false evidence violates the Fourteenth Amendment’s Due Process Clause.”
Justice Barrett, who agreed generally with the majority, would have remanded the case for a determination as to whether a new trial was warranted. Justice Thomas, in dissent, wrote that the state court’s denial of a new trial “should have marked the end of the road for Glossip. Instead, the Court stretches the law at every turn to rule in his favor.”
Two decisions and two bright-line tests. The Court is busy—stay tuned next week.
Anti-DEI Executive Orders Enjoined: Implications for Federal Funding Recipients and Private Employers
On Friday, February 21, 2025, a federal judge issued a Preliminary Injunction in National Association of Diversity Officers in Higher Education, et al. v. Trump, blocking significant portions of two Executive Orders (EOs) issued by President Donald Trump.
The decision, which will be appealed, creates more uncertainty for employers with programs that may fall under the broad umbrella of “Diversity, Equity, and Inclusion” (DEI) or “Diversity, Equity, Inclusion, and Accessibility” (DEIA) in light of the Trump administration’s efforts to eliminate DEI programs within federal agencies and impose restrictions on private sector DEI initiatives. For now, the court’s order blocks most – but not all – of the provisions in the two EOs.
Background
The U.S. District Court for the District of Maryland addressed a motion seeking relief from EO 14151 (“Ending Radical and Wasteful Government DEI Programs and Preferencing,” which the court labeled “J20 Order”) and EO 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” referred to by the court as the “J21 Order”). Epstein Becker Green has published several advisories explaining these EOs and how they may affect federal contractors and other federal funding recipients (see here and here) as well as other public and private employers (see here).
Both EOs were challenged by a group of plaintiffs that includes the City of Baltimore, the American Association of University Professors, and National Association of Diversity Officers in Higher Education. In brief, the plaintiffs argued that:
The EOs use vague terminology, creating compliance difficulties and violating the Fifth Amendment.
Failure to comply with the EOs’ unclear directives could, in some circumstances, even lead to criminal liability under the False Claims Act, creating untenable risk for those affected.
The EOs’ requirements that organizations certify that they do not engage in vaguely defined “illegal DEI” and threats of investigations of private organizations with DEI programs or enforcement action against entities create an unlawful chilling effect on speech protected by the First Amendment.
The EOs exceed the President’s constitutional authority because they violate the separation of powers and due process provisions of the Constitution.
Implementation of the EOs would cause irreparable harm to the plaintiffs and similarly situated federal contractors, grantees, and entities identified as targets for investigations and other compliance initiatives.
Highlights of the Court’s Analysis
In a 63-page Memorandum Opinion, Judge Adam B. Abelson found that the challenged provisions were unconstitutionally vague, and that the plaintiffs are likely to succeed on their claims under the First Amendment and the Fifth Amendment’s Due Process Clause. Noting that, despite duties of unrivaled gravity and breadth, a president is not exempt from the general provisions of the Constitution, the court found sufficient grounds to halt enforcement of two EO provisions in full, and a portion of a third provision.
Unlawful Viewpoint Discrimination Violates the First Amendment
Reviewing the First Amendment claims, the court considered the potential effects of both EOs. Section 3 of EO 14173 (referred to as the “Certification Provision”) requires every federal contract or grant award recipient to certify, among other things, that “it does not operate any programs promoting DEI that violate any applicable Federal antidiscrimination laws.” Section 4 of the same EO (referred to as the “Enforcement Threat Provision”) calls for civil compliance investigations and even actions under the False Claims Act (FCA) against entities engaging in protected speech, as we previously explained. Additionally, as we wrote here, the Enforcement Threat Provision, along with ensuing agency activity, has broad implications for the private sector. Finally, a “Termination Provision” contained in EO 14151 (in its Section 2) requires the federal government to terminate all “equity-related” grants or contracts (read more here).
The court found that such threats of “enforcement against perceived violators of undefined standards” place an unlawful viewpoint-based restriction on protected speech. The opinion describes the private-sector-oriented Enforcement Threat Provision, with its stated purpose of eliminating one type of principle (DEI) without a similar restriction on anti-DEI principles that may also violate anti-discrimination laws, as “textbook viewpoint-based discrimination.”
Impermissibly Vague Language Violates the Fifth Amendment
The court also found merit in arguments that certain terms in both EOs violate the Fifth Amendment’s Due Process clause by being so vague as to invite “arbitrary and discriminatory enforcement” and failing to sufficiently inform current contractors or grantees what they must do to avoid termination of their agreements with the government.
Specifically, the court agreed that the term “equity-related” in the Termination Clause’s discussion of grants or contracts that could be cancelled was ill-defined. The court also found that the Certification Provision could be interpreted very broadly, so that even DEI-related activities unrelated to any federally funded programs could be foreclosed. Describing a colloquy at the hearing in which “the government refused to even attempt to clarify what the Certification Provision means,” the court found that “even the government does not know what constitutes DEI-related speech that violates federal anti-discrimination laws,” which in turn leads to the conclusion that such an overbroad term is highly likely to cause self-censorship by contractors to mitigate risk.
The court also found that both EOs fail to explain what, exactly, constitutes “illegal DEI” or “illegal DEI and DEIA policies.” The absence of clear definitions for such terms grants excessive discretion to federal agencies and potentially leads to arbitrary enforcement.
A Broadly Applicable Nationwide Injunction – But Not A Blanket
The court, noting “prudential and separation-of-powers issues,” declined to halt the EOs with respect to any language directing the U.S. Attorney General to prepare a report or engage in investigations. The Preliminary Injunction also expressly excludes the President, but otherwise prohibits enforcement of the three provisions nationwide based on the finding that other employers would be affected in the same way as the plaintiffs. Specific prohibitions for each are as follows:
Termination Provision (EO 14151): may not be invoked to “pause, freeze, impede, block, cancel, or terminate … or change the terms of any [awards, contracts or obligations].”
Certification Provision (EO 14173): may not be enforced, eliminating (at least for now) requirements for federal contractors and grantees to certify they do not operate DEI programs that violate federal anti-discrimination laws.
Enforcement Threat Provision (EO 14173): may not be implemented to bring any anti-DEI enforcement action, including actions under the FCA, against private entities or government contractors and grantees.
Note that other portions of the EOs, including those directing agencies to take internal actions, remain in place. EO 11246, which required federal contractors to maintain affirmative action programs (AAPs) since 1965, remains revoked, and contractors are still required to wind down AAPs by April 21, 2025.
Employers should also note that this case has no effect on enforcement priorities or actions by other federal agencies such as the Equal Employment Opportunity Commission, whose Acting Chair, Andrea Lucas, has expressed a commitment to “rooting out unlawful DEI-motivated race and sex discrimination,” “[c]onsistent with the President’s Executive Order.”
The Battle Will Continue
On Monday, February 24, the Trump administration filed a Notice of Appeal, signaling that the case will proceed to the United States Court of Appeals for the Fourth Circuit. It is entirely plausible that the matter will proceed from there to the Supreme Court.
Meanwhile, there is no statement about or mention of the court’s preliminary injunction anywhere on the official White House website, including the pages listing the EOs. Other lawsuits challenging these (and other) EOs are pending. We will keep you apprised.
Staff Attorney Elizabeth A. Ledkovsky contributed to the preparation of this article.
Federal Court Blocks Key Provisions of President Trump’s DEI Executive Orders (US)
On Friday, February 21, a Maryland federal court judge in Maryland issued a nationwide injunction temporarily preventing enforcement of three key provisions of President Trump’s Executive Orders 14151 and 14173 targeting DEI programs (links below). The court found the following provisions of the Orders were unconstitutional under the First and Fifth Amendments of the U.S. Constitution.
The requirement that federal contractors and grantees certify that they do not operate “illegal” DEI programs and comply with federal discrimination laws for purposes of False Claims Act (the “Certification” provision in EO14173 Section 3(b));
The provision directing the Attorney General to deter “illegal” DEI programs or principles in the private sector by, in part, submitting a report identifying up to nine civil enforcement investigations of certain private sector companies, associations, and educational institutions (the “Enforcement Threat” provision in EO14173 Section 4); and
The requirement that federal agencies terminate federal equity-related grants or contracts (the “Termination” provision in EO 14151 Section 2(b)(i)).
The challenged provisions in President Trump’s DEI Executive Orders are Executive Order 14151 (Jan. 20, 2025) and Executive Order 14173 (Jan. 21, 2025).
The Certification Provision:
Section 3(b) of EO 14173 requires the head of each agency to include in every contract or grant award:
A term requiring the contractual counterparty or grant recipient 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 section 3729(b)(4) of title 31, United States Code; and
A term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.
The Enforcement Threat Provision:
Section 4 of the same order, entitled “Encouraging the Private Sector to End Illegal DEI Discrimination and Preferences,” directs the heads of all federal agencies, with the assistance of the Attorney General, to:
take “all appropriate action with respect to the operations of their agencies to advance in the private sector the policy of individual initiative, excellence, and hard work identified in section 2 of this order”; and
to further inform and advise the President so that the Administration may formulate appropriate and effective civil-rights policy, the Attorney General, within 120 days of this order, in consultation with the heads of relevant agencies and in coordination with the Director of OMB, shall submit a report to the Assistant to the President for Domestic Policy containing 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.
In addition, the report must contain a proposed strategic enforcement plan identifying:
Key sectors of concern within each agency’s jurisdiction;
The most egregious and discriminatory DEI practitioners in each sector of concern;
A plan of specific steps or measures to deter DEI programs or principles (whether specifically denominated “DEI” or otherwise) that constitute illegal discrimination or preferences. As a part of this plan, each agency shall identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars;
Other strategies to encourage the private sector to end illegal DEI discrimination and preferences and comply with all Federal civil-rights laws;
Litigation that would be potentially appropriate for Federal lawsuits, intervention, or statements of interest; and
Potential regulatory action and sub-regulatory guidance.
The Termination Provision:
Section 2(b)(i) of Executive Order 14151 requires each federal agency, department or commission head, in consultation with the Attorney General, the Director of OMB and the Director of OPM, as appropriate, to “terminate, to the maximum extent allowed by law, all DEI, DEIA, and “environmental justice” offices and positions (including but not limited to “Chief Diversity Officer” positions); all “equity action plans,” “equity” actions, initiatives, or programs, “equity-related” grants or contracts; and all DEI or DEIA performance requirements for employees, contractors, or grantees.”
The Court’s Ruling:
In National Association Of Diversity Officers In Higher Education, et al., v. Donald J. Trump et al., Case No. 1:25-cv-00333-ABA (D. Md. 2025), the plaintiffs challenged each of these provisions as unconstitutional on several grounds, including a violation of the spending clause, the separation of powers and the First and Fifth Amendments of the U.S. Constitution.
In his 63-page memorandum opinion, Judge Adam B. Abelson found the plaintiffs were likely to prevail in their challenge to these provisions as a violation of their First Amendment rights to free speech and their Fifth Amendment rights to due process.
Specifically, the court found the language used in the Certification requirement, as well as phrases used throughout the challenged provisions, such as “illegal DEI,” “DEI programs or principles,” and “equity-related grants and contracts” were unconstitutionally vague in violation of the Fifth Amendment and restricting DEI programs and principles infringed upon protected free speech under the First Amendment. The court highlighted the fact that the government would not – and at times, could not – fully explain the meaning of unlawful DEI or define what constitutes unlawful DEI programs, noting in its opinion that “even the government does not know what constitutes DEI-related speech that violates federal anti-discrimination laws.” Op. at 47.
The court also found the Trump Administration impermissibly sought to use the threat of investigations and enforcement, as well as government funding, to regulate free speech in violation of the First Amendment. Quoting the U.S. Supreme Court decision in Sorrell v. IMS Health Inc., 564 U.S. 552 (2011), Judge Abelson wrote, “The State may not burden the speech of others in order to tilt public debate in a preferred direction.” Op. at p. 32, quoting Sorrell, 564 U.S. at 578-79.
However, the court also said the plaintiffs did not challenge the EOs in their entirety and that the EOs permitted provisions found unlawful to be severable. Thus, while the challenged provisions are now blocked from being implemented, we can assume the Trump Administration will continue to enforce the remaining provisions, even if they are mainly administrative in nature.
Next Steps:
The Trump Administration likely will appeal the court’s temporary injunction, so this may not be settled for some time to come. For now, it’s important to know that the anti-DEI certification that the Trump Administration wanted inserted into federal contracts should be halted at this point, and that the termination of “equity-related” grants and contracts should be suspended at least, all of which potentially may become permanent or reversed depending on the final outcome of the case.
Note, too, that other White House directives, such as the revocation of EO 11246, remain unaffected by the court’s decision. Thus, before taking definitive action, federal contractors as well as private sector employers should continue to review their personnel policies and programs with legal counsel to help them navigate what is becoming an increasingly gray area of the law.
Federal Court Issues Partial Preliminary Injunction Halting Enforcement of DEI-Related EOs
On February 21, 2025, the U.S. District Court for the District of Maryland issued a preliminary injunction pausing enforcement of several provisions of President Trump’s DEI-related executive orders on Ending Radical and Wasteful Government DEI Programs and Preferencing (“EO 14151”) and Ending Illegal Discrimination and Restoring Merit-Based Opportunity (“EO 14173”).
Notably, the ruling prevents the federal government from enforcing a clause of EO 14173 which would have required federal contractors and grantees to certify both that they: (i) do not operate “illegal” DEI programs; and (ii) are in material compliance with federal anti-discrimination laws – provisions which would have raised potential False Claims Act (“FCA”) liability for covered entities.
Background
Plaintiffs, the National Association of Diversity Officers in Higher Education, American Association of University Professors, Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore (collectively, “Plaintiffs”), are federal contractors and grantees that fund DEI-related research, offer professional development services to individuals from underrepresented backgrounds, and conduct other “DEI-related activities.” On February 3, 2025, Plaintiffs brought suit against President Trump, Attorney General Pam Bondi, and various federal agencies and agency heads, claiming the following provisions of EOs 14151 and 14173 pose an imminent threat of harm to members of Plaintiffs’ organizations and violate the First Amendment, Fifth Amendment, and constitutional separation of powers principles:
“Termination Provision” (EO 14151 § 2(b)(i)), which orders each “agency, department, or commission head” to “terminate, to the maximum extent allowed by law, all ‘equity-related’ grants or contracts”;
“Certification Provision” (EO 14173 § 3(b)(iv)), which orders each agency to include certifications in every contract or grant award that the contractor or grantee does not operate illegal DEI programs and that compliance with federal anti-discrimination laws is “material to the government’s payment decisions for purposes of” the FCA; and
“Enforcement Threat Provision: (EO 14173 § 4(b)(iii)), which orders the Attorney General to submit recommendations and a strategic plan for enforcement actions to challenge illegal DEI in the private sector.
Plaintiffs moved for a declaratory judgment that the EOs are unlawful, as well as a temporary restraining order and/or preliminary injunction barring the federal government from enforcing the EOs.
Court’s Opinion and Reasoning
District Judge Adam B. Abelson issued a nationwide injunction partially enjoining the EOs, finding Plaintiffs had shown a likelihood of success on the merits of their First and Fifth Amendment challenges. The court concluded that the irreparable harms Plaintiffs faced, including “widespread chilling of unquestionably protected speech,” outweigh the government’s interest in “immediately imposing a new, not-yet-promulgated interpretation of what it considers ‘eradicating discrimination.’” The court declined to consider Plaintiffs’ separation of powers arguments because it found that Plaintiffs had already made a sufficient showing under their First Amendment claims to grant the preliminary injunction.
First, the court found that Plaintiffs were likely to succeed on their claim that the Certification Provision of EO 14173 violates the First Amendment. Given the potential threat of FCA liability and that the EO covers all contractor activity – not just actions related to federally sourced funds – the certification “constitutes a content-based restriction on the speech rights of federal contractors and grantees.” Moreover, the court found that the EO targets speech in support of DEI without imposing “a similar restriction on anti-DEI principles that may also be in violation of existing federal anti-discrimination laws.” The court explained that “[b]ecause even the government does not know what constitutes DEI-related speech that violates federal anti-discrimination laws,” federal contractors and grantees are “highly likely to . . . self-censor” in order to be compliant with the Certification Provision.
Second, the Court found that Plaintiffs would likely succeed on their claim that the term “‘equity-related’ grants or contracts” in the Termination Provision is unconstitutionally vague under the Fifth Amendment because: (i) it is a broad, undefined term that is likely to result in arbitrary and discriminatory enforcement between and within federal agencies; and (ii) the term does not provide contractors and grant recipients with notice of “what, if anything, they can do to bring their grants into compliance such that they are not considered ‘equity-related.’”
However, the court declined to pause the portion of the Enforcement Threat Provision that directs the Attorney General to create an enforcement plan and engage in investigations “to deter DEI programs or principles . . . that constitute illegal discrimination or preferences,” which is “merely a directive from the President to the Attorney General,” and does not implicate separation-of-powers principles.
As a result of this ruling, federal agencies: (i) may not enforce the Certification Provision while the injunction is in effect; (ii) must pause efforts to identify organizations for civil compliance evaluations; and (iii) must halt contract rescissions and contract modifications under the EOs. But any provision of EOs 14151 and 14173 not expressly enjoined by the ruling remains in effect – including the requirement for the Attorney General to develop a plan to deter illegal DEI efforts, which the Justice Department has indicated may involve potential criminal investigations.
Importantly, the decision does not foreclose private litigation challenging the use of DEI programs, including cases brought by prospective employee plaintiffs, attorneys general and organizations that have already taken the lead in pursuing such actions since the Supreme Court’s June 2023 ruling in Students for Fair Admissions v. Harvard.
FSA Deviations Issued Following Revocation of EO 11246
A letter issued by director of the U.S. General Services Administration (GSA) on February 15 marked a significant shift in federal procurement practices. The Civilian Agency Acquisition Council (CAAC) Letter authorizes federal agencies to deviate from certain provisions of the Federal Acquisition Regulations (FAR) and procurement practices that were mandated under Executive Order (EO) 11246, which was revoked by President Trump’s EO 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”)
Per the CAAC Letter, federal contractors and subcontractors are relieved from maintaining affirmative action plans and complying with the related clauses under FAR Subpart 22.8, which outlined Equal Opportunity provisions.
Specifically, the CAAC Letter details the following changes:
Revocation of Clauses Previously Used to Implement Rescinded EO 11246: Several FAR clauses that were previously used should now be excluded from new contracts. These include:
FAR 52.222-21, Prohibition of Segregated Facilities
FAR 52.222-22, Previous Contracts and Compliance Reports
FAR 52.222-23, Notice of Requirement for Affirmative Action to Ensure Equal Employment Opportunity for Construction
FAR 52.222-24, Pre-award On-Site Equal Opportunity Compliance Evaluation
FAR 52.222-25, Affirmative Action Compliance
FAR 52.222-26, Equal Opportunity
FAR 52.222-27, Affirmative Action Compliance Requirements for Construction
FAR 52.222-29, Notification of Visa Denial
Impact on the System for Award Management (SAM): Contractors will no longer be required to comply with SAM representation requirements.
“Gender Identity” Clause Changes: Pursuant to EO 14168 (“Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”), the term “gender identity” has been removed from FAR 22.801 and related clauses in FAR part 52.
While the changes announced in the CAAC Letter may reduce the regulatory burden on federal contractors, contractors must remain vigilant. Notably, the letter emphasizes that federal contractors are still bound by existing civil rights and non-discrimination laws in the United States, including Title VII of the Civil Rights Act. Even though the recent EOs modify federal contracting policies, contractors cannot rely on compliance with the EOs to defend against violating such anti-discrimination laws.
Federal contractors must stay apprised to how entities are responding to the CAAC Letter. Some federal entities are attempting to add clauses referencing anti-discrimination laws and the False Claims Act (FCA). For example, the Army and Air Force Exchange Service (AAFES) has posted contract terms that require contractors to certify that they do not operate programs in violation of federal anti-discrimination laws, explicitly referencing the False Claims Act. It is unclear whether this contractual term would survive a legal challenge, so contractors should remain vigilant when reviewing this language.
As always, federal contractors should pay close attention to their contractual obligations and ensure they are up to date on the latest procurement requirements. Employers should consult legal counsel before taking action with regard to this whirlwind of changes in federal mandates.
Key Court Ruling on DEIA Programs – What You Should Know
On February 21, 2025, the United States District Court for the District of Maryland enjoined the Trump administration from implementing two recently issued executive orders targeting diversity, equity, inclusion, and accessibility (“DEI” or “DEIA”) programs. These executive orders, Ending Radical and Wasteful Government DEI Programs and Preferencing and Ending Illegal Discrimination and Restoring Merit-Based Opportunity, sought to eliminate DEIA activities and programs within the federal government, recipients of federal contracts and grants, the private sector, and educational institutions.
Published on January 20 and 21, 2025, among other things, these executive orders (1) directed executive agencies to terminate “equity-related” grants and contracts; (2) directed all executive agencies to include within every federal contract or grant award a certification, enforceable through the False Claims Act, that the recipient of federal funding does not operate any programs promoting DEIA in violation of federal anti-discrimination laws; (3) directing the Attorney General to encourage the private sector to end illegal discrimination and preferences, including DEIA, and to identify potential civil compliance investigation targets (the “Challenged Provisions”).
On February 3, 2025, the National Association of Diversity Officers in Higher Education, the American Association of University Professors, the Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore, Maryland (collectively, the “Plaintiffs”), filed suit seeking a preliminary and permanent injunction enjoining the government from enforcing the Orders. The Plaintiffs also sought a declaration that the Challenged Provisions are unlawful and unconstitutional.
Scope and Implications of the Preliminary Injunction
In its February 21st memorandum opinion granting Plaintiffs’ request for a preliminary injunction (with a single, narrow exception), the Court found the Challenged Provisions violate the First and Fifth Amendments to the United States Constitution in that they: are unconstitutional content-based and viewpoint-discriminatory restrictions on protected speech (First Amendment); and (2) deny Plaintiffs protection under the Fifth Amendment right to Due Process. Key to the Court’s decision was its finding that the Orders fail to define key terms, including “DEI,” “DEIA,” “equity,” “equity-related,” “promoting DEI,” “illegal DEI,” “illegal DEI and DEIA policies,” and “illegal discrimination or preferences,” or to identify the types of programs or policies the administration considers “illegal.”
The preliminary injunction is broad in scope, prohibiting the administration from:
pausing, freezing, impeding, blocking, canceling, or terminating any awards, contracts or obligations, or changing the terms thereof, on the basis of a Challenged Provision;
requiring any grantee or contractor to make any “certification” or other representation pursuant to a Challenged Provision; or
bringing any False Claims Act enforcement action, or other enforcement action, pursuant to any Challenged Provision.
The Court did not enjoin that part of the Challenged Provisions directing the Attorney General to submit a report containing recommendations for enforcing federal civil rights laws, and to identify potential civil compliance investigations.
Notably, as a preliminary injunction, the injunction will be in place during the entirety of the litigation until lifted by the Court. Additionally, the injunction is nationwide in scope and is not limited to the Plaintiff parties. That said, the injunction does not limit enforcement of other executive orders, some of which also threaten termination of federal contracts and grants and require certification.
What’s Next?
The administration will likely appeal the Court’s decision to the United States Court of Appeals for the Fourth Circuit. The party losing that appeal will likely appeal the decision to the United States Supreme Court. This means that, unless the 4th Circuit orders the District Court to lift the injunction while the litigation proceeds (which is not likely), the injunction will remain in place for the time it takes for a final decision to be reached.
Because the injunction does not prohibit this aspect of the Challenged Provisions, the Attorney General is expected to submit a report that includes the identification of potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, state and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars. As per the applicable Executive Order, the Attorney General’s report must be submitted by May 21, 2025.
What Should You Do?
Organizations, including private companies, federal contractors, foundations, associations, and institutions of higher education, should continue to review their existing policies and programs to confirm compliance with current law. In particular, organizations should ensure that all activities and programs:
Are broadly inclusive and open to all;
Do not include targets or goals (even those that are aspirational) based on race, gender, or any other protected characteristic;
Do not tie compensation or other rewards to the achievement of DEIA objectives or goals;
Do not provide benefits or awards (scholarships, mentoring programs, and the like) based on protected characteristics;
Do not require organizations to consider diverse groups of candidates for hiring or promotion; and
Do not require board membership to meet specific diversity goals.
Given the increased legal risk to DEIA programs and activities, organizations should consider conducting this review in concert with their legal counsel, under the umbrella of attorney-client privilege. Following this review and consistent with their risk tolerance, culture, and values, organizations should consider re-framing their DEIA programs and activities as necessary to comply with current statutory, regulatory, and judicial requirements. With this review and re-framing (if necessary or desirable), organizations can help reduce legal risk while remaining consistent with their organizational culture and values.