Exception to Refugee Ban: Addressing Egregious Actions of South Africa
President Donald Trump issued Executive Order (EO) 14204, “Addressing Egregious Actions of the Republic of South Africa,” on Feb. 7, 2025, creating an exception to the refugee ban, driven by concerns over South Africa’s racially discriminatory property confiscation practices.
EO 14204 follows the enactment of South Africa’s Expropriation Act 13 of 2024, enabling the government to seize agricultural property owned by ethnic minority Afrikaners without compensation.
Key Provisions
Suspension of Aid and Assistance: The EO mandates that the United States shall not provide aid or assistance to South Africa as long as the country continues its “unjust and immoral practices.” This includes halting foreign aid and assistance delivered by all executive departments and agencies.
Promotion of Afrikaner Refugee Resettlement: The EO emphasizes the resettlement of Afrikaner refugees who are victims of government-sponsored race-based discrimination. The Department of State (DOS) and the Department of Homeland Security (DHS) are directed to prioritize humanitarian relief, including admission and resettlement through the United States Refugee Admissions Program (USRAP).
Humanitarian Considerations: The EO directs the DOS and DHS to take appropriate steps to prioritize humanitarian relief for Afrikaners in South Africa who are victims of unjust racial discrimination. This includes submitting a plan to the president through the assistant to the president and Homeland Security advisor.
By suspending aid and promoting the resettlement of Afrikaner refugees, the EO aims to address deemed human rights violations, representing the U.S. government’s stance against perceived discriminatory practices in South Africa. The suspension of processing refugee applications under the USRAP, except on a case-by-case basis, outlined in EO 14163, “Realigning the United States Refugee Admissions Program” as well as the suspension of other humanitarian programs, indeed adds a layer of complexity to the situation.
Court Enjoins Portions of Trump Administration’s DEI Executive Orders
In another regulatory turn for federal contractors and private employers, a federal judge partially enjoined enforcement of provisions of the Trump Administration’s executive orders[1] regarding diversity, equity, inclusion and accessibility (DEI or DEIA) programs on Friday, February 21, 2025.[2] The preliminary injunction applies nationwide, covering both plaintiffs and nonparties.
The Provisions Enjoined
The court’s order restricts enforcement of three provisions across two executive orders:
The Termination Provision (§ 2(a)) of Exec. Order No. 14151 is enjoined. This provision requires each agency, department, or commission head to terminate all “equity-related grants or contracts” within 60 days of the order. This is a subsection of the order’s larger provision directing the Office of Management and Budget director to “coordinate the termination of all discriminatory programs, including illegal DEI and ‘diversity, equity, inclusion, and accessibility’ (DEIA) mandates, policies, programs, preferences, and activities in the Federal Government[.]”
The Certification Provision (§3(b)) of Exec. Order No. 14173 is enjoined. This provision requires the head of each agency to include a requirement in each contract or grant award for the counterparty/recipient to agree that its compliance with federal anti-discrimination laws is material to payment decisions under the False Claims Act. It further requires the counterparty to certify that it does not operate programs promoting DEI that violate federal anti-discrimination laws.
The Enforcement Threat Provision (§ 4) of Exec. Order No. 14173 is enjoined. This provision directs each federal agency to identify up to nine potential civil compliance investigations of publicly traded corporations, nonprofits, foundations, bar or medical associations, or higher education institutions, with the goal of encouraging the private sector to end illegal discrimination and preferences.
The Provisions Are Unconstitutionally Vague
The Termination and Enforcement Threat Provisions are enjoined because they are “unconstitutionally vague as to all contractors and grantees who are subject to them.”
The orders are unconstitutionally vague because they do not define key terms such as “DEI,” “equity-related,” or “illegal DEI.” This leaves federal contractors and their employees with “no idea whether the administration will deem their contracts or grants, or work they are doing, or speech they are engaged in, to be ‘equity-related,’” and the private sector unaware of whether a particular program, discussion, or policy is deemed “illegal.”
The Provisions Violate Free Speech Rights
The Certification and Enforcement Threat Provisions were also enjoined because they are “content- and viewpoint-based restrictions that chill speech as to anyone the government might conceivably choose to accuse of engaging in speech about ‘equity’ or ‘diversity’ or ‘DEI,’ or the other topics the [Executive] Orders cite.”
Reports and Investigations May Continue
Citing prudential and separation-of-powers reasons, the court did not restrict the attorney general’s ability under the orders to prepare reports and pursue investigations. Pursuant to the Administration’s direction to the attorney general’s office and based on press releases from the attorney general’s office, the attorney general has been developing an “enforcement plan” for the provisions of the executive orders as well as a plan for conducting criminal investigations.
What’s Next?
This case is in early stages and is one of numerous challenges proceeding in the courts. We will continue to monitor this case as well as any related decisions impacting DEI policies of both federal contractors and private employers. We recommend employers consult DEI experts and labor and employment counsel to assess their DEI policies and determine if changes are necessary to mitigate risk.
[1] This case involves challenges to Exec. Order No. 14151, Ending Radical and Wasteful Government DEI Programs and Preferencing (Executive Order of January 20, 2025); Exec. Order No. 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, (Executive Order of January 21, 2025).
[2] The case is National Association of Diversity Officers in Higher Education et al v. Trump et al, No. 1:25-cv-00333 (D. Md.).
One Month into the New Administration, Employers Have a Lot to Think About
This past week marked the one-month anniversary of the new Trump Administration, and there have been many developments — including in just the past week — to which employers need to pay attention.
Secretary of Homeland Security revokes Temporary Protective Status (TPS) for Haitians and certain Venezuelans. The Secretary of Homeland Security may designate a foreign country for TPS due to conditions in the country’s that temporarily prevent the country’s nationals from returning safely. Currently, 17 countries have been granted TPS. Those granted TPS are entitled to work authorization (“EAD”). On February 1, 2025, Secretary of Homeland Security Kristi Noem decided to terminate TPS under the 2023 designation for Venezuela. If the termination stands, on April 7, 2025, a certain category of Venezuelans (approximately 350,000 people) previously granted TPS will lose status to remain in the U.S. And, on February 20, 2025, Secretary Noem revoked TPS for Haitian nationals (approximately 500,000 people) effective August 3, 2025. Unless revoked or blocked through court litigation, on the above dates, Venezuelans and Haitians here on TPS will lose their work authorization. Any employer who continues to employ a worker without valid work authorization can be subject to civil and criminal prosecution. It is possible workers from these two countries may have other legitimate bases, such a pending asylum petition, to remain in the country and remain employed. Employers who employ foreign nationals from these two countries should review each employee’s situation and determine strategies and/or options to keep them lawfully employed. In addition, employers should review their employees on TPS designation and stay vigilant other revocations in the weeks and months to come.
NLRB’s Acting General Counsel Revokes Certain Memos Issued by his Predecessor. On February 14, 2025, National Labor Relation Board (NLRB or “Board”) Acting General Counsel William B. Cowen issued a memo revoking various memos issued over the past three years by then NLRB General Counsel Jennifer Abruzzo, whom President Trump fired shortly after taking office. The general counsel (GC) of the NLRB supervises the regional offices and plays a key role in directing enforcement and persuading the NLRB members on policy issues. Of the many memos rescinded were the prior memos calling for “full relief” (including various types of compensatory damages and not just back pay when violations were found) as well as a memo suggesting noncompetes violate workers’ rights and guidance about the NLRB’s decision Cemex Construction Materials Pacific, LLC, which made it more difficult for employers to avoid representation elections. The revocation of the prior memos indicates an immediate and dramatic shift away from the pro-employee and union positions of the prior GC and Board under the Biden Administration.
President Trump Issues Executive Order requiring Independent Regulatory Agencies to Submit to Presidential Oversight. On February 18, 2025, President Trump issued an executive order entitled “Ensuring Accountability for All Agencies.” This order requires so-called independent agencies, such as the NLRB and perhaps the EEOC as well, to submit to more oversight from the White House on budgetary and regulatory matters and limits the legal positions they can take. Should this executive order stand the legal challenges that are likely to come, the president will be able to directly influence policy and enforcement activities more directly at these employment enforcement agencies.
Acting EEOC Chair Seeks to Protect Anti-American Bias. Signaling another dramatic shift in enforcement priorities at an employment related government agency, on February 19, 2025, U.S. Equal Employment Opportunity Commission (EEOC) Acting Chair Andrea Lucas announced “The EEOC is putting employers and other covered entities on notice: if you are part of the pipeline contributing to our immigration crisis or abusing our legal immigration system via illegal preferences against American workers, you must stop. The law applies to you, and you are not above the law. The EEOC is here to protect all workers from unlawful national origin discrimination, including American workers.”
EEOC’s Final Rule Under the Pregnant Workers Fairness Act Under Attack. Acting Chair Lucas also issued a statement describing her opposition to certain parts of the Commission’s Final Rule implementing the Pregnant Workers Fairness Act (PWFA). The acting chair does not agree with the Commission’s interpretation of the phrase “pregnancy, childbirth, or related medical conditions” and the contrivances the Commission used to arrive at its construction of the statute. Related to this, on Thursday February 20, 2025, the Eighth Circuit Court of Appeals issued a decision holding that attorneys general from 17 Republican-majority states have the right to sue the EEOC over the same PWFA rule, reviving their challenge to abortion-related components of the regulations.
Currently, both the NLRB and EEOC lack a sufficient quorum to enact any changes since President Trump fired members from both those agencies. It is clear that the Trump Administration will be issuing many more changes in enforcement strategy and implementing policies that will be directly affecting employers. Stay tuned!
Preliminary Injunction Granted Related to DEI-Related Executive Orders—Takeaways for Government Contractors
In the four weeks since President Trump issued Executive Order (“EO”) 14151 (“Ending Radical and Wasteful Government DEI Programs and Preferencing”) and EO 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”), virtually all sectors of American society have been scrambling to understand their compliance obligations and seeking to reduce legal risk. Businesses have taken a range of approaches, from preparing to defend their diversity, equity, and inclusion (“DEI”) commitments to removing public-facing references to DEI. Some government contractors have received DEI-related certifications required by EO 14173, which implicate enforcement under the False Claims Act (“FCA”).
In a significant new development, on February 21, 2025, the United States District Court for the District of Maryland issued a nationwide preliminary injunction against both EO 14151 and EO 14173. Here’s what federal contractors need to know.
Case Background
The plaintiffs allege that EO 14151 violates the Constitution’s spending clause by directing the termination of “equity-related” contracts (Count I); that Sec. 2 of EO 14151 and Sec. 4 of EO 14173 are unconstitutionally vague (Counts II and III); that Sections 3 and 4 of EO 14173 violate the First Amendment’s Free Speech Clause (Counts IV and V, ); and that EO 14173 violates the constitutional separation of powers principle (Count VI).
The Challenged Provisions
The Court generally describes the EOs’ “Challenged Provisions” as follows:
The “Termination Provision” of EO 14151 directs executive agencies to terminate “equity-related” grants and contracts;
The “Certification Provision” of EO 14173 directs executive agencies to require a new contract certification, enforceable through the FCA, stating that the contractor does not promotea DEIprogram that violates applicable federal anti-discrimination laws; and
The “Enforcement Threat Provision” of EO 14173 directs the Attorney General (“AG”) to encourage the private sector to end illegal discrimination and preferences, including DEI, and to have agencies identify up to nine targets for potential civil compliance investigations.
The following analysis focuses on the Certification and the Enforcement Threat challenges, which are the most salient for government contractors.
1. Likelihood of Success on the Merits
The Court found that Plaintiffs showed injury from the Certification and Enforcement Threat Provisions because Plaintiffs “reasonably expect that they will be forced to either restrict their legal activities and expression that are arguably related to DEI, or forgo federal funding altogether.” (Memorandum of Opinion (“Mem. of Op.”) at 25.)
(a) First Amendment Rights of Contractors
The Court specifically addressed the First Amendment rights of federal contractors, reiterating that in Board of Cnty. Com’rs, Wabaunsee Cnty., Kan. v. Umbehr the Supreme Court held that the government does not have “carte blanche to terminate independent contractors for exercising First Amendment rights.” 518 U.S. 668, 679 (1996). Although the government has some ability to restrict a government contractor’s free speech rights, Fulton v. City of Philadelphia, Pennsylvania, 593 U.S. 522, 535 (2021), the First Amendment prohibits the government from “seek[ing] to leverage funding to regulate speech outside the contours of the program itself.” Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 214-15 (2013) (“AID”). Additionally, the government may not terminate government contracts “because of the[] [contractors’ or grantees’] speech on matters of public concern.” Wabaunsee County, 518 U.S. at 675.
The Court also found Plaintiffs are likely to succeed because the Certification “constitutes a content-based restriction on the speech rights of federal contractors…” and applies to all of a contractor’s work, whether or not funded by the government. (Mem. of Op. at 25.)
The Court noted that during the hearing, the government failed to satisfactorily address hypotheticals about DEI implementation by federal contractors and thus, “[b]ecause even the government does not know what constitutes DEI-related speech that violates federal anti-discrimination laws, Plaintiffs have easily shown a likelihood that they will prevail in proving that the Certification Provision operates as a content-based prior restraint on their speech, and likely will also prevail in showing that the Certification operates as a facially viewpoint-discriminatory order as well. The speech-chilling effect of the Certification Provision is particularly obvious given the vagueness of the [EOs]…”, and that “federal contractors… have shown they are unable to know which of their DEI programs (if any) violate federal anti-discrimination laws, and are highly likely to chill their own speech—to self-censor, and reasonably so—because of the Certification Provision. Indeed, the Certification Provision was likely designed to induce, and certainly has been shown to have the effect of inducing, federal contractors… to apply an overinclusive definition of illegal DEI to avoid risking liability. This is exactly what AID prohibits…” (Mem. of Op. at 47.)
(b) The FCA
The Court also addressed the precarious situation of contractors facing the Certification Requirement, noting that the vagueness of EO 14173 puts them “in a position to have to guess whether they are in compliance” and that they are “threatened with False Claims Act liability if they miss the mark. Such escalation of consequences dramatically raises the stakes, and by extension dramatically expands the degree of injury to interests protected by the Fifth Amendment.” (Mem. of Op. at 54-55.)
2. Irreparable Harm
The Court found that Plaintiffs are suffering irreparable harm due to a chilling effect on their speech and a potential loss of federal funding. The Court noted: “…the Challenged Provisions strip Plaintiffs of the ability to know what the government might now consider lawful or unlawful. There have been 60 years of statutes, regulations, and case law developed since the Civil Rights Act of 1964. The Challenged Provisions strip away much of the prior executive branch guidance, and then threaten the loss or condition the receipt of federal funds, and also threaten civil enforcement actions—some backed by the possibility of treble damages—for violations. And in so doing, they threaten to punish prior expressions of protected speech, and chill future expressions of protected speech.” (Mem. of Op. at 56-57.)
3. Balance of the Equities
Here, the Court approvingly cited the Plaintiffs’ statement that “[e]fforts to foster inclusion have been widespread and uncontroversially legal for decades” (Mem. of Op. at 59), and stated that the “the status quo must be maintained while Plaintiffs and the government litigate the claims asserted in this case. The balance of equities tips strongly in Plaintiffs’ favor.” (Mem. of Op. at 60.)
Implications for Federal Government Contractors
The injunction has several immediate implications for federal government contractors:
1. Contractors no longer face the immediate threat of termination due to undefined “equity-related” activities.
2. Agencies cannot require contractors to make certifications pursuant to the Certification Provision.
3. The government may not bring an FCA suit or other enforcement action based on the Enforcement Threat Provision, temporarily reducing the risk of government-initiated FCA action.
4. The injunction does not apply to the requirement under EO 14173 that the AG submit a report in coordination with the heads of relevant agencies that identifies key sectors of concern within each agency’s jurisdiction, and each sector’s “most egregious DEI practitioners,” as well as up to nine targets for potential civil compliance investigations. We therefore expect the AG to continue preparing this report—which is what was prompting some contractors to reconsider the extent of their public commitments to DEI in the first place. The AG’s report is due May 21, 2025.
Moving Forward
Contractors should consider the following steps in light of the injunction:
Document DEI-Related Interactions with the Government: Contractors should document any communications or actions taken by federal agencies that might contravene the injunction.
Stay Informed: Monitor further legal developments, both in this case and in a similar one filed February 19, 2025, in the United States District Court for the District of Columbia.
Consult Legal Counsel: Contractors should consult counsel regarding existing DEI programs, including whether and how to amend such programs given the changing legal landscape.
Conclusion
The preliminary injunction is an initial victory for federal contractors that provides immediate relief from the threat of losing federal funding for not signing a DEI certification, the threat of government-initiated FCA enforcement, and the infringement on DEI-related speech.
Federal Court Concludes States Have Standing to Challenge EEOC’s Pregnant Workers Fairness Act Rule (US)
The U.S. Court of Appeals for the Eighth Circuit ruled on February 20, 2025, in Tennessee v. Equal Employment Opportunity Commission, that seventeen (17) State attorneys general have standing to challenge the EEOC’s Final Rule interpreting the Pregnant Workers Fairness Act (the “PWFA” or “the Act”). In the first federal appellate court decision to consider the issue, the Eighth Circuit panel held that the plaintiff-States have a sound jurisprudential basis to challenge the Final Rule because the States “are the object of the EEOC’s regulatory action.”
Congress enacted the PWFA in 2023. The Act requires covered employers to provide employees or applicants with reasonable accommodation to known limitations related to, affected by or arising out of “pregnancy, childbirth, or related medical conditions,” unless the accommodation will cause the employer undue hardship. 42 U.S.C. § 2000gg(4). Critical to understanding this employer obligation is the embedded term “related medical conditions,” which Congress left undefined, choosing instead to delegate to the Equal Employment Opportunity Commission (EEOC) the responsibility to “provide examples of reasonable accommodations addressing known limitations related to pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000gg-3(a).
In April 2024, after notice-and-comment rulemaking, the EEOC issued regulations broadly defining what constitutes “limitations related to, affected by, or arising out of pregnancy, childbirth or related medical conditions,” including within its examples, among others, lactation, miscarriage, stillbirth and “having or choosing not to have an abortion.” 29 C.F.R. Part 1636 & app. A. Numerous religious organizations voiced dissent to the EEOC’s broad definition of limitations related to pregnancy and childbirth. Even within the EEOC, there was vocal disagreement about the proposed regulations. Andrea Lucas—who at the time was an EEOC Commissioner but who, on January 20, 2025, was designated by President Trump as the Acting Chair of the EEOC shortly before he terminated two of the three Democratic Commissioners on the five-seat EEOC—vociferously objected to the agency’s broad interpretation of the phrase “pregnancy, childbirth, or related medical conditions,” claiming the phrase conflated accommodations to pregnancy and childbirth with accommodations to the female sex, including female biology and reproduction. Over Ms. Lucas’s objection, the EEOC’s Final Rule issued, with the broad definition of pregnancy-related limitations intact.
Less than one week after the Final Rule took effect, seventeen State Attorneys General, all hailing from Republican states, challenged the Final Rule on behalf of State employers, contending the EEOC exceeded its authority under the PWFA when it included abortions within the scope of pregnancy “related medical conditions.” At oral argument, the States conceded there may be some situations when a State employer should reasonably accommodate an employee obtaining an abortion, such as in the case of an incomplete miscarriage, ectopic pregnancy or when pregnancy-related medical conditions (such as diabetes) imminently threaten the health of the pregnant employee. However, the States objected, the Final Rule also purports to require accommodation for elective abortions “prompted exclusively by the woman’s choice, where no ‘physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions…’ exists, but where getting the abortion creates some limitations on the employee’s ability to do her job.” The States argued that, in many jurisdictions they represented, elective abortions—indeed, almost all abortions—are illegal; therefore, a regulation requiring accommodation for an illegal medical procedure created a non-speculative injury to the State-employers. The EEOC retorted that the States’ request to enjoin the regulation was unwarranted and the States lacked standing to bring the case because the States’ asserted injuries were purely speculative, both with respect to any individual accommodation and the overall cost of compliance with the regulation.
The federal court for the Eastern District of Arkansas agreed with the EEOC and held, on June 14, 2024, that the States lacked standing to challenge the Final Rule. The district court held the Plaintiff-States had not asserted a redressable injury-in-fact, pointing specifically to the EEOC’s inability to bring enforcement actions against State employers and the vagary around the compliance costs the States argued they would bear implementing the regulation. On appeal, however, the Eighth Circuit Court of Appeals reversed, concluding that “[t]he imposition of a regulatory burden itself causes injury.” The appellate court reasoned:
Covered entities must comply with the Rule, and we presume that the States will follow the law as long as the Rule is in effect. An employer cannot meet its obligations under the Rule without taking steps to ensure that its employees know their rights and obligations under the Rule. As a practical matter, the Rule requires immediate action by the States to conform to the Rule, and this action produces an injury in fact.
The case now returns to the district court to hear the States’ arguments on the merits. Should the States prevail on the merits, the Final Rule is likely to be substantially revised. Although EEOC Acting Chair Lucas lacks the authority unilaterally to rescind or modify the Final Rule, she has indicated that the EEOC will reconsider portions of the Final Rule that are “unsupported by the law” once a quorum is re-established. We will continue to monitor and update with developments.
Court Temporarily Hits the Brakes on EO 14173 Ending Illegal Discrimination: What Employers Should Know
Big Picture
On February 21, 2025, a federal judge in the District Court of Maryland granted a temporary injunction blocking portions of President Trump’s Executive Orders “Ending Illegal Discrimination and Restoring Merit Based Opportunity” (“14173”) and “Ending Radical and Wasteful Government DEI Programs” (“14151”) (collectively the “EOs”). To learn more about each EO’s directives read Blank Rome’s previous coverage on 14173 here and 14151 here. This is a temporary nationwide ban on certain portions of the EOs.
After pointing out that the Trump Administration has declared “DEI to be henceforth illegal”, the Court found the EOs do not “define any of the operative terms” such as “illegal DEI”, “equity-related”, “promoting DEI”, or “illegal discrimination or preferences”. This vagueness fails to provide companies and organizations with proper notice as to what types of programs are prohibited. Further, the Court found that the EOs likely violate the First Amendment by expressly threatening “the expression of views supportive of equity, diversity and inclusion.” This is a nationwide ban.
Background: EOs Have Government Contract Implications & Implicate the Private Sector
Among other provisions, EO 14173 requires that all federal contracts and/or grant awards contain a term where the contractor/grantee must agree its “compliance in all respects with all applicable Federal anti-discrimination laws” is material to the government’s payment decisions for purposes of the False Claims Act (“FCA”) (the “Certification Provision”).
EO 14173 also applies pressure to the private sector, directing the Attorney General (“AG”), in consultation with heads of federal agencies, to prepare a report by May 20, 2025, containing strategies on how to encourage the private sector to end “illegal discrimination” by, among other things, creating a “plan of specific steps or measures to deter DEI programs or principles” including the identification of “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” (the “Enforcement Threat Provision”).
Additionally, relevant to the Court’s decision, EO 14151 directs federal agencies to “within sixty days of this order … terminate, to the maximum extent allowed by law, all … ‘equity-related’ grants or contracts” (the “Termination Provision”).
Basis for the Legal Challenge: DEI Advocates Challenge EOs
On February 3, 2025, various diversity, equity, and inclusion (“DEI”) advocates moved to preliminarily enjoin the enforcement of both EOs on, among other grounds, the following:
Violation of the Fifth Amendment, arguing the EOs are unconstitutionally vague as they do not define key terms such as what “illegal” DEI or “equity-related” is thereby not providing proper notice to employers; and
Violation of the First Amendment, arguing the threat of civil compliance investigations and new government contractor certifications chill ability to freely discuss important DEI-related topics.
Court Enjoins Enforcement of Termination & Certification Provisions for Government Contractors
After conducting a hearing on February 19, 2025, the Court partially agreed with Plaintiffs and preliminarily enjoined the Administration from enforcing portions of the EOs, specifically halting the following actions as it relates to government contractors:
Terminating any awards, contracts, or obligations on the basis of being “equity-related” under the Termination Provision;
Requiring any grantee or contractor to make any “certification” or other representation pursuant to the Certification Provision; and
Bringing any FCA enforcement action, including but not limited to any enforcement action premised on any “certification” made pursuant to the Certification Provision.
Court Enjoins Enforcement Through Civil Compliance Investigations for Private Sector
As it relates to the private sector, the President’s administration is blocked from bringing any enforcement action pursuant to the Enforcement Threat Provision. Importantly, the Court specified that although enforcement is blocked, the AG may continue to prepare their report including “[a] plan of specific steps or measures to deter DEI programs or principles. . .that constitute illegal discrimination or preferences.”
Notably the Court’s decision does not block similar provisions in EO 14173 directing the AG to include additional information in their report, namely, “key sectors of concern within each agency’s jurisdiction”; “litigation that would be potentially appropriate for federal lawsuits, intervention, or statements of interest”; and the “most egregious and discriminatory DEI practitioners in each sector of concern.”
Next Steps for Employers
While this is an early win for proponents of DEI initiatives, government enforcement plans have not been blocked and new lawsuits are being filed against companies challenging their DEI programs daily. Most recently, the state of Missouri filed suit against multinational chain of coffeehouses for their “illegal DEI” practices (including minority-based mentorship programs and diversity goals) and the state of Florida filed a class action lawsuit against a large retail corporation alleging the company misled investors about the risks related to their LGBTQ Pride campaign.
Government contractors, organizations receiving federal funding, and private sector employers may have a slight temporary reprieve but should consult with their legal counsel now regarding steps to take in light of the Court’s decision, as this decision is likely to be appealed by the administration. Further, it is important to understand the AG’s ability to continue preparing their report encouraging the private sector to end DEI initiatives and enforcement through means outside of the Enforcement Threat Provision currently being fair game.
If not done so already, all companies should conduct a privileged assessment of current DEI statements, policies, and initiatives to ensure compliance with federal laws. All employers should remain diligent in their review given that the Court’s decision is a temporary pause on enforcement and this outcome, along with the outcomes of additional pending lawsuits filed, and those sure to be filed, are developing.
Federal Court Preliminarily Blocks Key Parts of President Trump’s Orders Restricting DEI at Private Employers
A federal judge in Maryland has preliminarily blocked the Trump administration from enforcing key provisions of the recent executive orders (EO) to eliminate “illegal” diversity, equity, and inclusion (DEI) programs and initiatives from the federal government and federal contractors, finding the provisions are unconstitutionally vague and infringe free speech.
Quick Hits
A federal court in Maryland preliminarily blocked the Trump administration from enforcing executive orders that seek to eliminate DEI programs and initiatives in the federal government and private sector.
The court found the executive orders are likely unconstitutionally vague, lack clear definitions, and potentially discriminate against certain viewpoints in violations of the First Amendment.
The ruling provides some temporary relief for federal contractors and other private employers that have faced concerns they will be a target of federal regulators over programs that may be classified as “illegal” DEI.
On February 21, 2025, U.S. District Judge Adam B. Abelson granted a preliminary injunction, blocking three key provisions of two EOs issued by President Donald Trump in his first days in office: (1) a provision that required federal agencies to terminate “equity-related grants or contracts,” (2) a provision that required federal contractors and subcontractors to certify for purposes of False Claims Act (FCA) liability that they do not operate unlawful DEI programs, and (3) a provision directing the attorney general to enforce civil rights laws against DEI programs in the private sector.
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—filed the lawsuit on February 3, 2025, alleging that the Trump EOs restricting DEI or diversity, equity, inclusion, and accessibility were vague and unconstitutional.
Judge Abelson found that the EOs fail to “define any of the operative terms” such as “equity-related” and “illegal DEI,” leaving companies without clear guidance on what types of programs or policies are being restricted. The judge said the EOs further seek to deter certain principles and speech in clear viewpoint discrimination that is likely to violate the First Amendment.
The ruling in the U.S. District Court for the District of Maryland is a major win for organizations promoting DEI and diversity, equity, inclusion, and accessibility (DEIA) and provides some temporary relief for federal contractors and subcontractors and other private employers that have faced concerns they will be targeted by federal regulators over programs that could arguably be classified as “illegal” DEI.
The ruling also comes just days after a two groups of civil rights organizations filed similar challenges U.S. District Court for the District of Columbia and the U.S. District Court for the Northern District of California against the two DEI executive orders and another that rejected gender identity.
Executive Orders
The DEI advocates’ suit targeted EO 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” which was issued on January 20, 2025, President Trump’s first day in office. The order directed federal agencies to “within sixty days of this order … terminate, to the maximum extent allowed by law, all … ‘equity-related’ grants or contracts.”
EO 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” issued on January 21, 2025, directed agencies 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 the FCA. The provision has raised concerns for companies doing business with the federal government over potential liability under the FCA, which makes it illegal to defraud the government and allows whistleblowers to bring claims.
Further, EO 14173 directs the attorney general to develop a plan for “enforcing Federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.” The order states the plan should “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.”
Court’s Findings and Injunction
The court found that the plaintiffs were likely to succeed on the merits of their claims that these provisions were unconstitutionally vague and violated the First Amendment. The court issued a preliminary injunction against the following provisions:
Termination Provision
The court found that the term “equity-related” in EO 14151 is likely vague and could lead to arbitrary and discriminatory enforcement. The court found that the lack of clear definitions leaves federal contractors and grantees uncertain about what activities are prohibited, which could have a chilling effect on speech and activities related to DEI.
Judge Abelson stated that “individuals and organizations have no reasonable way to know what, if anything, they can do to bring their grants into compliance such that they are not considered ‘equity-related.’”
Certification Provision
The court determined that this provision imposed a content-based restriction on speech, requiring contractors and grantees to certify compliance with undefined federal anti-discrimination laws. This provision was found to leverage federal funding to regulate speech outside the scope of the funded programs, violating the First Amendment.
Judge Abelson found that the language of the provision “makes clear that the sole purpose of the provision, regardless of the individualized implementation by executive agencies, is for federal contractors and grantees to confirm under threat of perjury and False Claims Act liability that they do not operate any programs promoting DEI that the government might contend violate federal anti-discrimination laws. This is precisely a ‘condition[] that seek[s] to leverage funding to regulate speech outside the contours of the program itself.’”
Enforcement Threat Provision
The court concluded that it is likely to be found that this provision in EO 14173 is, on its face, an unlawful viewpoint-based restriction on speech. The provision targets DEI programs in private companies without clear definitions and the threat of enforcement is likely to have a chilling effect on speech related to DEI. Judge Abelson stated that it is clear the Trump administration through the EO “that viewpoints and speech considered to be in favor of or supportive of DEI or DEIA are viewpoints the government wishes to punish and, apparently, attempt to extinguish.”
Scope of the Injunction
The preliminary injunction applies not only to the plaintiffs in the case but also to similarly situated federal contractors, grantees, and private sector entities. The court emphasized the need to maintain the status quo while the litigation proceeds and prevent the enforcement of the challenged provisions.
Next Steps
This preliminary injunction represents a significant legal victory for proponents of DEI programs and principles. The court’s decision focused on the lack of clarity of the language used in the EOs and the likelihood that this could chill the free speech of companies and organizations. However, the preliminary injunction ruling will likely be appealed by the Trump administration, and the issues raise important constitutional questions that could land it before the Supreme Court of the United States.
Second Circuit Upholds Reverse Redlining Verdict Against Mortgage Lender
On February 14, a divided Second Circuit panel upheld a 2016 jury verdict which found that a mortgage lender violated, among other laws, the Equal Credit Opportunity Act (“ECOA”) by engaging in “reverse redlining” when it allegedly targeted Black and Latino homeowners with predatory loans.
The majority held that the district court did not abuse its discretion by applying equitable tolling to the plaintiff’s claims, and rejected the mortgage lender’s argument that the statute of limitations began running at loan origination. Instead, the statute of limitations began to run when the plaintiffs discovered that they were the alleged victims of discrimination in connection with their predatory loans.
The majority also rejected the mortgage lender’s challenges to the district court’s jury instructions finding they sufficiently conveyed the requirement for proving disparate impact.
Putting It Into Practice: While we will likely see a pullback in ECOA enforcement under the Trump administration, financial institutions are reminded that many statutes, including ECOA, have an independent right of action. As such, we expect the plaintiffs’ bar to continue to remain busy in bringing lawsuits. Accordingly, lenders should continue to review their own fair lending protocols to ensure they maintain appropriate compliance practices.
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Beltway Buzz, February 21, 2025
NLRB Acting GC Rescinds Abruzzo Memos. The National Labor Relations Board (NLRB) still lacks an operational quorum, but Acting General Counsel William B. Cowen is taking steps to undo policy positions held by his predecessor, Jennifer Abruzzo. Thomas M. Stanek and Zachary V. Zagger have the details on Cowen’s rescission of at least eighteen of Abruzzo’s general counsel memoranda relating to expanded remedies, noncompete agreements, and severance agreements, among others. These memoranda represented Abruzzo’s opinion on areas of the law in which she wanted the Board to act, or her interpretations of how Board decisions should be implemented. By rescinding these memoranda, Cowen effectively “wipes the slate clean” and sets the stage for himself—or another individual serving in the general counsel role—to establish his or her own labor policy agenda at the Board. Of course, Cowen’s actions do not overturn any Board decisions that have been issued over the last several years.
Senate HELP Committee Examines Secretary of Labor Nomination. On February 19, 2025, the Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing to examine the nomination of Lori Chavez-DeRemer to serve as secretary of labor. Chavez-DeRemer didn’t reveal too many details about her agenda should she get confirmed, but here are some takeaways about what we might expect:
Chavez-DeRemer promised to work on or review regulations relating to joint employer and independent contractor status under the Fair Labor Standards Act (FLSA).
As for workplace safety, Chavez-DeRemer stated that she would review the Occupational Safety and Health Administration’s (OSHA) proposed emergency response rule, as well as OSHA’s pending proposal on workplace violence prevention.
No senators asked Chavez-DeRemer about the prospects of the Office of Federal Contract Compliance Programs (OFCCP), which was gutted by Executive Order (EO) 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”
Chavez-DeRemer expressly denounced her support of the provision in the Protecting the Right to Organize (PRO) Act, which would eliminate state right-to-work laws, stating that her support of the bill was to start a conversation about workers’ rights and that the bill was imperfect.
Regarding immigration, Senators Susan Collins (R-ME) and Lisa Murkowski (R-AK) expressly asked Chavez-DeRemer to encourage the U.S. Congress to issue the maximum allotment of H-2B visas, while Senator Tommy Tuberville (R-AL) impliedly asked her to support the H-1B program. In response, Chavez-DeRemer noted the U.S. Department of Labor’s (DOL) limited role in these programs, but promised to work with the senators on these issues.
Democratic senators generally raised issues that are likely to resound as reoccurring themes from their side of the aisle during this congressional session: raising the minimum wage, promoting unionization, attacking right-to-work laws, endorsing paid family leave, criticizing noncompete agreements, and condemning President Donald Trump’s removal of U.S. Equal Employment Opportunity Commission (EEOC) commissioners Jocelyn Samuels and Charlotte Burrows, as well as NLRB member Gwynne Wilcox.
Republicans outnumber Democrats on the HELP Committee 12–11, so even one Republican “no” vote could cause problems for Chavez-DeRemer’s nomination. The committee is expected to vote on Chavez-DeRemer’s nomination on February 27, 2025.
House Republican Introduces Independent Contractor Legislation. Representative Kevin Kiley (R-CA) has introduced two bills addressing independent contractors.
The Modern Worker Empowerment Act (H.R. 1319) would amend both the FLSA and the National Labor Relations Act (NLRA) to create a two-part test for determining whether a worker is an independent contractor, rather than an employee. Pursuant to the bill, a worker is an independent contractor if the putative employer “does not exercise significant control over the details of the way the work is performed by the individual” and if the worker “has the opportunities and risks inherent with entrepreneurship, such as the discretion to exercise managerial skill, business acumen, or professional judgment.” The bill also lists several factors that cannot be used as part of the employee/independent contractor inquiry, such as requiring the worker to comply with legal requirements, carry insurance, or “meet contractually agreed-upon performance standards, such as deadlines.’’
The Modern Worker Security Act (H.R. 1320) allows employers to provide workers with portable benefits—such as paid leave, health insurance coverage, and retirement savings—without those benefits being an indicia of employment under federal law.
Kiley represents California’s 3rd congressional district, is very familiar with the state’s A.B. 5 independent contractor statute, and has been a strong opponent of the Biden administration’s DOL’s independent contractor rule.
Democratic State AGs Issue DEI-Related Guidance. The Trump administration’s opposition to diversity, equity, and inclusion (DEI) continues to reverberate in the private-sector employer community. For example, sixteen Democratic state attorneys general have issued a document entitled, “Multi-State Guidance Concerning Diversity, Equity, Inclusion, and Accessibility Employment Initiatives. The document sets forth the legal opinions of the attorneys general regarding the impact of EO 14173 on private-sector DEI initiatives. The guidance takes the position that DEI programs and practices “are not illegal, and the federal government does not have the legal authority to issue an executive order that prohibits otherwise lawful activities in the private sector or mandates the wholesale removal of these policies and practices within private organizations, including those that receive federal contracts and grants.” The guidance does not carry the force of law, and does not compel employers to take any particular action, but it does serve as an example of Democrats’ efforts to counter Republican attempts to undermine diversity and inclusion practices in the private sector. Future Democratic efforts could exert more pressure on employers that have changed their DEI practices as a result of the administration’s actions. Nonnie L. Shivers and Leah J. Shepherd have the details.
EEOC to Prioritize “Anti-American National Origin Discrimination.” On February 19, 2025, the EEOC issued a press release reemphasizing that Acting Chair Andrea Lucas will prioritize “protecting American workers from anti-American national origin discrimination.” The release coordinates the EEOC’s enforcement agenda with the administration’s scrutiny of both legal and illegal immigration, noting, “The EEOC will help deter illegal migration and reduce the abuse of legal immigration programs by increasing enforcement of employment antidiscrimination laws against employers that illegally prefer non-American workers.” The press release further states that federal law makes it unlawful for employers to adopt policies or practices preferring “illegal aliens, migrant workers, and visa holders or other legal immigrants over American workers.”
Incorporating the Bill of Rights. On February 19, 1923, Edward Terry Sanford was sworn in as an associate justice of the Supreme Court of the United States. Sanford only served seven years on the Court until his death in 1930, but he was instrumental in the Court’s adoption of the “incorporation doctrine,” which applies the Constitution’s Bill of Rights to the individual states. Several Supreme Court decisions in the 1800s—including the Slaughter-House Cases (1873)—had restricted the application of the Bill of Rights to the federal government. This began to change incrementally with the turn of the century, and the “incorporation doctrine” was cemented in Supreme Court jurisprudence when Sanford wrote the majority opinion in a 1925 case called Gitlow v. New York. In Gitlow, the Court upheld—by a vote of 7–2—New York’s conviction of Benjamin Gitlow under its Criminal Anarchy Law for publication of a document, titled “Left Wing Manifesto,” as a reasonable action “to protect the public peace and safety.” While the case was an exception to the First Amendment’s free speech protections, Sanford made clear that the amendment was applicable to the states. He wrote:
We may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States.
Gitlow paved the way for future cases applying the Bill of Rights to the states, such as Gideon v. Wainwright (1963) (extending the Sixth Amendment’s right to counsel to the states).
‘What Is a Woman?’ Alabama Governor Signs Bill Declaring There Are Only Two Sexes
On February 13, 2025, Alabama Governor Kay Ivey signed into law Senate Bill 79 / Act 2025-3, declaring that there are only two sexes, male and female. Originally introduced on February 4, 2025, the legislation amends Alabama Code § 1-1-1, which defines certain words used throughout the Alabama Code. Officially codified as the “‘What Is a Woman?’ Act,” the act carries implications for various aspects of public policy, legal definitions, data collection, and protections of sex-based rights and spaces.
Quick Hits
Alabama’s “‘What Is a Woman?’ Act” applies “wherever state law classifies individuals on the basis of sex or otherwise mentions individuals as being male or female, men or women, or boys or girls.”
According to the act, there are only two sexes: male and female.
Under the act, public entities may establish certain single-sex spaces or environments without running afoul of anti-discrimination laws.
The act becomes effective on October 1, 2025.
About the Act
The act follows President Donald Trump’s Executive Order 14168, titled, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” declaring there are two sexes. The act applies throughout the Alabama Code where the law classifies individuals based on sex or as “male” or “female” and proclaims that men and women “are legally equal but not physically the same.” It aims to prevent “unjust sex discrimination” while “maintaining safety, privacy, and fairness for both sexes.”
These definitions apply for purposes of applying the act’s provisions:
“(1) Boy. A human male who has not yet reached adulthood.
(2) Father. The male parent of a child or children.
(3) Female. When used in reference to a natural person, an individual who has, had, will have, or would have, but for a developmental anomaly, genetic anomaly, or accident, the reproductive system that at some point produced ova.
(4) Girl. A human female who has not yet reached adulthood.
(6) Male. When used in reference to a natural person, an individual who has, had, will have, or would have, but for a development anomaly, genetic anomaly, or accident, the reproductive system that at some point produces sperm.
(7) Man. An adult human of the male sex.
(9) Mother. The female parent of a child or children.
(10) Person. Includes an individual, corporation, partnership, company, or other business entity.
(14) Sex. When the term is used to classify or describe a natural person, the state of being male or female as observed or clinically verified at birth.
(18) Woman. An adult human of the female sex.”
The act allows public entities to establish single-sex spaces or environments “when biology, privacy, safety, or fairness” are at stake. The law explicitly provides that school districts, public schools, state agencies, and political subdivisions that “collect[] vital statistics related to sex as male or female for the purpose of complying with anti-discrimination laws …” shall identify individuals as “either male or female.”
Implications
The act reflects an ongoing push to define sex and gender identity in the United States. The bill’s sponsor, Senator April Weaver (R-Alabaster), said the law is a necessary measure “for clarity, certainty and uniformity in the courts and in the laws of Alabama,” and Governor Ivey called the act “common sense.” Detractors of the act say it does not protect women and is a restrictive approach relying on gender stereotypes that discriminates against transgender Alabamians. Nine states have similar laws, and several others are pushing to enact similar laws this year.
This act may change the way public employers are currently collecting and reporting data from employees, students, and others, and may implicate issues relating to bathrooms, locker rooms, and other typically sex-segregated spaces. The act affects any aspect of Alabama law where the law classifies individuals based on sex or as “male” or “female,” which could implicate state anti-discrimination laws and other employment laws for both public and private employers. The implications for private employers are less clear than those for public employers, but the act could affect any required reporting to public entities where individuals may be classified based on sex. As with any legislative change, the act may spark discussions about its implications, but it remains to be seen how this law will shape the legal and social landscape in Alabama.
EEOC Announces Enforcement Focus on “Illegal Preferences Against American Workers”
On Wednesday, February 19, 2025, Acting Equal Employment Opportunity Commission (“EEOC”) Chair Andrea R. Lucas announced the EEOC plans to target employers that “illegally prefer non-American workers,” as well as “staffing agencies and other agents that unlawfully comply with client companies’ illegal preferences against American workers” through increased enforcement of Title VII’s national origin protections.
This latest statement expounds upon the enforcement priorities Lucas laid out in her January 21, 2025, statement, which included “protecting American workers from anti-American national origin discrimination.”
This week, Lucas explained that the EEOC intends to partner with other federal agencies, including the Department of Justice, the Department of Homeland Security, and the Department of Labor to achieve “enhanced investigation and enforcement” of Title VII protections for American employees.
Notably, the announcement also indicates that the EEOC’s enforcement focus will include non-American employees who are authorized to work in the United States, including “visa holders and other legal immigrants.” Citing a “large-scale problem in multiple industries nationwide,” Lucas stated that the EEOC is committed to not only “decreasing demand for illegal alien workers,” but also “decreasing abuse of the United States’ legal immigration system.”
As Proskauer previously reported, the EEOC still lacks a quorum, which may limit the Commission’s ability to effect Lucas’s agenda, as Commission approval is required before the EEOC initiates a case alleging a systemic pattern or practice of discrimination.
Recent Executive Orders: What Employers Need to Know to Assess the Shifting Sands
In January 2025, President Trump issued a flurry of executive orders. Several may significantly impact employers; the key aspects of these orders are described below, although this is not an exhaustive summary of every provision.
1. Diversity, Equity, and Inclusion (DEI) Programs and Affirmative Action Compliance Obligations
The “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” Executive Order contains many provisions that may significantly impact federal contractors and private employers. First, this order revoked Executive Order 11246 (E.O. 11246), which, among other things, required federal contractors to engage in affirmative action efforts, including developing affirmative action plans concerning women and minorities. In addition to revoking E.O. 11246, President Trump’s order requires that the Office of Federal Contract Compliance (OFCCP) immediately cease promoting diversity, investigating federal contractors for compliance with their affirmative action efforts, and allowing or encouraging federal contractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin. Further, the order states that federal contract recipients will be required to certify that they do not “operate any programs promoting diversity, equity, and inclusion (DEI) that violate any applicable Federal anti-discrimination laws.” This order does not impact affirmative action obligations concerning individuals with disabilities and protected veterans.
Second, private sector DEI efforts are also addressed in the order, which effectively states that the President believes such practices are illegal and violate civil rights and anti-discrimination laws. This order further provides that the Attorney General, in coordination with relevant agencies, must submit a report that identifies the most “egregious and discriminatory” DEI practices within the agency’s jurisdiction, including a plan to deter DEI programs or principles (whether the programs are denominated as DEI or not); identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profits, large foundations, select associations and/or education institutions with endowments over one billion dollars; identify “other strategies to encourage the private sector to end illegal DEI discrimination;” and identify potential litigation and regulatory action or sub-regulatory guidance that would be appropriate.
In recent weeks, several corporations have rolled back or limited their DEI programs, presumably in anticipation of, or in reaction to, this order. Notably, the order does not prohibit all DEI policies and initiatives; rather, it impacts only those determined to be discriminatory and illegal, e.g., quotas or explicit preferences for women and/or minorities. Policies focusing on workplace inclusion, broadly defining diversity, and adhering to merit-based hiring may reduce the risk of violating this order.
2. Sex and Gender as Protected Characteristics
The “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” Executive Order redefines federal policy about sex and gender, stating that the federal government will only recognize sex (meaning biological sex – male or female) and not gender. This order directs federal agencies to end initiatives that support “gender ideology”; use the term “sex” not “gender” in federal policies and documents; enforce sex-based rights and protections using the order’s definition of “sex”; and rescind all agency guidance that is inconsistent with the order, including the Equal Employment Opportunity Commission’s “Enforcement Guidance on Harassment in the Workplace” (April 29, 2024), among others. This order also mandates that all government-issued identification documents, including visas, reflect the biological sex assigned at birth and seeks to limit the scope of the U.S. Supreme Court decision in 2020 that held that “sex discrimination” includes gender identity and sexual orientation. This order also directs the EEOC and U.S. Department of Labor (DOL) to prioritize enforcement of rights as defined by the order.
3. Artificial Intelligence
In 2023, former President Biden issued an executive order regarding the potential risks associated with artificial intelligence (AI), which resulted in the DOL releasing guidance on May 16, 2024, entitled “Department of Labor’s Artificial Intelligence and Worker Well-being: Principles for Developers and Employers.” On January 23, 2025, President Trump issued an executive order regarding AI entitled “Removing Barriers to American Leadership in Artificial Intelligence,” which rescinded President Biden’s order. President Trump’s order instructs federal advisors to review all federal agency responses to President Biden’s order and rescind those that are inconsistent with President Trump’s order. Accordingly, the DOL and any other related federal agency guidance, including the 2024 AI guidance issued by the OFCCP, will be rescinded. Employers incorporating such guidance into their policies and practices should respond appropriately. Despite this change in the federal landscape, employers should keep in mind that several states have recently passed laws governing AI use in the workplace, highlighting potential violations under federal and state anti-discrimination laws through AI use.
Below are links to the relevant Executive Orders.
Executive Order 14173 – “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”
Executive Order 14168 – “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”
Executive Order 14151 – “Ending Radical And Wasteful Government DEI Programs And Preferencing”
Executive Order 14179 – “Removing Barriers to American Leadership in Artificial Intelligence”