Disability Discrimination Charges Involving Neurodivergence Are Rising, According to EEOC Data
As diagnoses of neurodiversity become more common, employers are facing more disability discrimination complaints from neurodivergent workers, according to recent data from the U.S. Equal Employment Opportunity Commission (EEOC).
Quick Hits
EEOC data shows a rise in disability discrimination charges related to neurodiversity in recent years.
The federal Americans with Disabilities Act (ADA) covers certain conditions associated with neurodivergence.
It is unlawful to discriminate, harass, or retaliate against workers with disabilities related to neurodivergence.
Neurodiversity generally refers to medical conditions that cause the brain to function differently than the typical pattern. These conditions include autism, attention-deficit hyperactivity disorder (ADHD), dyslexia, sensory processing disorder, and Tourette’s syndrome. In many cases, people with those conditions meet the ADA definition of disability. The ADA covers physical and mental impairments that substantially impair a major life activity, such as sleeping, eating, speaking, and reading.
EEOC merit resolutions related to autism more than doubled from 0.4 percent of total merit resolutions in 2016 to 1.5 percent of total merit resolutions in 2023. Likewise, merit resolutions related to “other neurological impairments” accounted for 4.2 percent of total merit resolutions in 2023, up from 3.2 percent in 2016.
The increase in EEOC charges may reflect societal trends as Americans became more aware of neurodiversity, and more children and adults received diagnoses related to neurodiversity in recent years.
About 11 percent of U.S. children aged three to seventeen years had ever been diagnosed with ADHD in 2022, up from 8 percent in 2008, according to the U.S. Centers for Disease Control and Prevention (CDC). The percentage of children diagnosed with autism more than quadrupled from 0.006 percent in 2000 to 0.028 percent in 2020, according to the CDC.
A variety of reasonable accommodations could be helpful for a neurodivergent worker, depending on the symptoms, the severity of the condition, and the type of job. Employers can use the interactive process to identify accommodations that would be suitable for the individual without being an undue hardship for the employer.
If an employee has an ADA-qualified disability involving neurodivergence, it is illegal to discriminate or harass that employee because of the employee’s condition. It is also unlawful to retaliate against that employee for reporting an ADA violation.
10 Tips for Accommodating Employees With Autism
Employers may wish to review their written policies and practices to ensure that they are adequate to prevent discrimination, harassment, and retaliation against workers who have an ADA-qualified disability related to neurodivergence.
Regarding employees with autism, employers can consider a variety of reasonable accommodations, depending on the individual needs and the nature of the job. Here are ten possibilities to consider:
1. Flexible Work Schedules: Allowing adjustments to start/end times or offering part-time options can help reduce stress and accommodate sensory or routine preferences.
2. Quiet Workspaces: Providing a low-noise area, noise-canceling headphones, or a private office can minimize sensory overload.
3. Clear Communication: Offering written instructions, checklists, or visual aids alongside verbal directions can improve understanding and task completion.
4. Structured Environment: Maintaining consistent routines, predictable schedules, and advance notice of changes can help reduce anxiety.
5. Sensory Adjustments: Modifying lighting (e.g., reducing fluorescent lights), allowing comfortable clothing, or minimizing strong odors can address sensory sensitivities.
6. Job Coaching or Mentorship: Assigning a supportive supervisor or peer to provide guidance and feedback can help employees learn job tasks and workplace norms.
7. Breaks as Needed: Permitting short, scheduled breaks to recharge can help manage fatigue or prevent becoming overwhelmed.
8. Task Modification: Breaking tasks into smaller steps, focusing on strengths (e.g., detail-oriented work), or adjusting nonessential duties can enhance productivity.
9. Assistive Technology: Tools like speech-to-text software, organizational apps, or timers can support focus and communication.
10. Social Support: Offering training for coworkers on autism awareness or excusing noncritical social events can ease interpersonal pressures.
Another Court Partly Blocks DEI-Related Executive Orders; U.S. Government Continues to Stay Its Course
On Thursday, March 26, 2025, a federal judge for the Northern District of Illinois issued a Temporary Restraining Order (TRO) prohibiting enforcement of portions of Executive Order 14151 (“the J20 EO”) and Executive Order 14173 (“the J21 EO”), two of President Trump’s first directives seeking to eliminate Diversity, Equity, and Inclusion (DEI), previously explained here.
This order has implications for federal contractors and grant recipients nationwide, at least for now.
The Case
The case, Chicago Women in Trades v. Trump et. al., was brought by a Chicago-based association, Chicago Women in Trades (CWIT), that advocates for women with careers in construction industry trades. Federal funding has constituted forty percent of CWIT’s budget. After the issuance of the J20 and J21 EOs, CWIT received an email from the U.S. Department of Labor’s (DOL) Women’s Bureau stating that recipients of financial assistance were “directed to cease all activities related to ‘diversity, equity and inclusion’ (DEI) or ‘diversity, equity, inclusion and accessibility’ (DEIA).” Similarly, one of its subcontractors emailed CWIT to immediately pause all activities directly tied to its federally funded work related to DEI or DEIA. CWIT brought the action against President Trump, the DOL, and other agencies alleging, among other things, that its Constitutional rights were violated by various provisions in both EOs. For example, CWIT argued that the J20 EO targeted “DEI,” “DEIA,” “environmental justice,” “equity,” and “equity action plans” without defining any such terms. This lack of definition, according to CWIT, makes it difficult to understand what conduct is permissible and what is not.
Contractor “No DEI” Certifications Blocked
The ruling enjoins the DOL and, by extension, its Office of Federal Contract Compliance Programs (OFCCP) from enforcing two discrete portions of the Executive Orders: (1) Section 2(b)(i) of the J20 EO (the “Termination Provision”), authorizing the agency to terminate a government contract or grant based on the awardee’s alleged DEI-related activities; and (2) Section 3(b)(iv) of the J21 EO (the “Certification Provision”), requiring federal contractors and grant recipients to certify that they do not operate any program promoting unlawful DEI. A Memorandum Opinion and Order accompanying the TRO emphasizes that its ruling constrains only one agency, at least for now.
The injunction against the Termination Provision is also narrow in that it applies only to the plaintiff, CWIT. Specifically, the TRO blocks the DOL from taking any adverse action related to any contracts with the plaintiff. The TRO further forbids the federal government from initiating any enforcement action under the False Claims Act against the plaintiff. Nevertheless, the TRO does carry nationwide implications, in that it prohibits the DOL from requiring any contractor or grantee to make any certification or other representation pursuant to the terms of the J21 EO’s Certification Provision.
Other Initiatives to Curb DEI Continue
Despite judicial opinions criticizing the EOs, most notably in a case currently under review by the U.S. Court of Appeals for the Fourth Circuit, governmental agencies continue to move forward with actions supportive of the EOs, and enforcement against public and private entities for DEI initiatives or other practices. For example:
On March 19th, the U.S. Equal Employment Opportunity Commission and the U.S. Department of Justice (DOJ) issued multiple documents explaining the administration’s view of DEI as a form of workplace discrimination.
On March 26th, the DOJ issued a Memorandum to all U.S. law schools regarding race-based preferences in admissions and employment decisions.
On March 27th, two agencies issued press releases announcing investigations: the U.S. Department of Health and Human Services announced action against an unnamed “major medical school in California,” and the DOJ issued a press release stating that it is looking into whether four major universities in California use “DEI discrimination” in their admissions practices. The DOJ announcement concludes that “compliance investigations into these universities are just the beginning of the Department’s work in eradicating illegal DEI and protecting equality under the law.”
On March 28th, the administration made headlines across Europe after two French newspapers published the template of a letter and accompanying form sent by the U.S. Department of State to companies in France, Belgium, Italy, and other European Union nations that do business with the federal government, demanding compliance with the J21 EO and requesting completion of a form to certify “compliance in all respects with all applicable federal anti-discrimination law…” and that the contractor does not “operate any programs promoting Diversity, Equity, and Inclusion that violate any applicable Federal anti-discrimination laws.”
What’s Next?
The court will consider further injunctive relief in the coming weeks, and may convert the TRO into a preliminary injunction after a hearing scheduled for April 10, 2025. At present, at least a dozen lawsuits have been filed challenging the Executive Orders regarding DEI, while Executive Branch agencies continue to pursue enforcement activities aligned with the EOs and administration policy.
Federal Agencies Cracking Down on DEI/DEIA
In the first two months of President Trump’s second term, his administration has engaged in a full-throated repudiation of “illegal” diversity, equity, and inclusion (“DEI”) and diversity, equity, inclusion, and accessibility (“DEIA”) programs.1
The Trump Administration issued a January 21, 2025 executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (“EO 14173” – click here to read our recent client alert on this executive order). Since then, the Attorney General issued a memo titled “Ending Illegal DEI and DEIA Discrimination and Preferences”, the Office of Personnel Management issued a memo titled “Further Guidance Regarding Ending DEIA Offices, Programs and Initiatives ”(the OPM memo”), and the Equal Employment Opportunity Commission and Department of Justice jointly issued a set of FAQs titled “What You Should Know About DEI-Related Discrimination at Work”.
Executive orders are directives to federal agencies and officials that must be followed but are not binding on those outside the government without legislative action. Inter-governmental memos and FAQs are also not binding on those outside the federal government. Nevertheless, the EOs and related documents give us insight into the direction the administration intends to take.
But what is an “illegal” DEI program? To date, this Administration has provided no guidance regarding what makes a DEI program illegal or even what constitutes a “DEI program.” Despite the lack of clarity, however, the law relating to DEI programs has not changed—if a DEI program was lawful under federal antidiscrimination laws on January 19, 2025, it remains lawful today.
Nevertheless, the lack of guidance, paired with the clear language this administration has used to vilify DEI programs in general, has caused fear, confusion, and uncertainty within organizations, leading some to eliminate DEI programs and/or scrub their websites of all references to DEI programs. Doing so, however, could subject an employer to employee backlash, including claims of discrimination, as well as public calls for boycott. Before deciding whether to eliminate, maintain, or enhance your diversity and inclusion programs, we recommend the following:
Assess your risk tolerance.
Understand the laws in your state. Although this administration has signaled it expects compliance with its directives regardless of state law, the states may not agree.
Document the lawful purpose behind diversity and inclusion programs.
Document employment decisions carefully, setting forth the legitimate business reasons behind the decisions and showing that decisions are based on merit without regard to any protected characteristics.
Review your diversity and inclusion policies, programs, and training materials, including all public-facing DEI-related communications and disclosures. Consider whether to conduct this review under the umbrella of attorney-client privilege.
Review your investigation protocols, to encompass complaints and concerns about DEI programs and “DEI-related discrimination.”
Develop internal and external communications strategies, to mitigate legal risks while staying true to your culture and values.
Closely monitor legal developments.
Some DEI programs may contain elements that could be challenged under the law that existed on January 19, 2025, before President Trump’s second term began. Consider immediately eliminating those elements, which may include the following,
Employee resource groups/affinity groups that are only open or provide benefits to employees based on specific protected characteristics.
Scholarship, fellowship, internship, mentoring, and other professional development opportunities that are limited to or targeted at members of specific protected characteristics.
Goals, targets, or quotas based on protected characteristics.
Compensation targets based on the achievement of DEI objectives or goals.
Our team will continue to track and analyze significant directives and policy changes as they are announced. For further information, contact the authors of this alert or your WBD attorney.
1 For purposes of this Alert, both DEI and DEIA programs will be used interchangeably.
DOJ Withdraws 11 Pieces of Americans With Disabilities Act Title III Guidance: What Covered Businesses Need to Know
The Department of Justice (DOJ) withdrew 11 documents providing guidance to businesses on compliance with Title III of the Americans with Disabilities Act (Title III). The DOJ Guidance sets forth how the agency interprets certain issues addressed by Title III of the ADA. Although the guidance has been withdrawn, the law remains the same. Title III requires that covered businesses must provide people with disabilities with an equal opportunity to access the goods or services that they offer.
The DOJ says the documents were withdrawn in order to “streamline” ADA compliance resources for businesses consistent with President Trump’s January 20, 2025 Executive Order “Delivering Emergency Price Relief for American Families and Defeating the Cost-of-Living Crisis” . According to the DOJ’s press release, “Today’s withdrawal of 11 pieces of unnecessary and outdated guidance will aid businesses in complying with the ADA by eliminating unnecessary review and focusing only on current ADA guidance. Avoiding confusion and reducing the time spent understanding compliance may allow businesses to deliver price relief to consumers.”
The DOJ identified the following guidance for withdrawal:
COVID-19 and the Americans with Disabilities Act: Can a business stop me from bringing in my service animal because of the COVID-19 pandemic? (2021)
COVID-19 and the Americans with Disabilities Act: Does the Department of Justice issue exemptions from mask requirements? (2021)
COVID-19 and the Americans with Disabilities Act: Are there resources available that help explain my rights as an employee with a disability during the COVID-19 pandemic? (2021)
COVID-19 and the Americans with Disabilities Act: Can a hospital or medical facility exclude all “visitors” even where, due to a patient’s disability, the patient needs help from a family member, companion, or aide in order to equally access care? (2021)
COVID-19 and the Americans with Disabilities Act: Does the ADA apply to outdoor restaurants (sometimes called “streateries”) or other outdoor retail spaces that have popped up since COVID-19? (2021)
Expanding Your Market: Maintaining Accessible Features in Retail Establishments (2009)
Expanding Your Market: Gathering Input from Customers with Disabilities (2007)
Expanding Your Market: Accessible Customer Service Practices for Hotel and Lodging Guests with Disabilities (2006)
Reaching out to Customers with Disabilities (2005)
Americans with Disabilities Act: Assistance at Self-Serve Gas Stations (1999)
Five Steps to Make New Lodging Facilities Comply with the ADA (1999)
The DOJ is also “raising awareness about tax incentives for businesses related to their compliance with the ADA” by prominently featuring a link to a 2006 publication.
The withdrawn guidance was prepared before the most recent Title III regulations went into effect in 2011 or deals with COVID-19. We do not expect the DOJ’s withdrawal of the guidance to have significant impact on business operations. However, Jackson Lewis attorneys, including Disability Access Litigation and Compliance group are closely monitoring the rapid developments from the federal agencies that impact our clients.
Can Common Interest Communities Ban Religious Displays On Doors And Doorframes?
The Nevada legislature is currently considering a bill, SB 201, that would restrict, with certain exceptions, an association or unit’s owner who rents or leases his or her unit from prohibiting a unit’s owner or occupant of a unit from engaging in the “display of religious items”. The bill defines “display of religious items” as “an item or combination of items: (1) Made of wood, metal, glass, plastic, cloth, fabric or paper; and (2) Displayed or affixed on any entry door or doorframe of a unit because of sincerely held religious beliefs”. At the Senate Committee on Judiciary the bill was amended to, among other things, expand its application to include apartments.
The reference to doorframes caused me to think of mezuzot. A mezuzah consists of a case containing a small piece of parchment inscribed by hand with the first two sections of the Shema. The fixing of mezuzah to a doorframe is governed by a number of specific rules, including a requirement that it be visible (or there be a symbol indicating the presence of the mezuzah).
As noted, an item must be displayed “because of sincerely held religious beliefs”. Mezuzot and doorposts should meet this requirement because are specifically mentioned in Deuteronomy 6:9 (“וּכְתַבְתָּ֛ם עַל־מְזֻז֥וֹת בֵּיתֶ֖ךָ וּבִשְׁעָרֶֽיךָ׃ {ס} inscribe them on the doorposts of your house and on your gates”). In obedience of this divine command, Jews affix mezuzot to every doorway in their homes (other than bathrooms and small closets).
What about religious symbols of other faiths? The bill does not specifically refer to any particular faith or symbols (including a mezuzah). Crosses or crucifixes are generally recognized as Christian symbols and nothing in the bill excludes either. However, they do raise a question of what is meant by “sincerely held religious beliefs”. Does this simply require that the owner or occupant sincerely hold a belief in Christianity or does it require that the owner or occupant specifically believe that the display is religiously mandated? If the latter requirement is imposed, then it may be difficult for an owner or occupant to meet it, for I know of no Christian canon similar to Deuteronomy 6:9 that mandates a display of a cross or crucifix on a door or doorframe (if any reader is aware of such a requirement, please let me know). Thus, a Christian may choose to affix a cross to his or her doorway because they are a sincere believer, but they may not believe that they are required by their religion to do so.
I therefore find the requirement of a “sincerely held religious belief” to be problematical because it invites owners associations, landlords, and ultimately the courts to delve into religious law and belief. In addition, the requirement could invite challenges to the sincerity of an owner’s belief.
The bill also excludes, among other things, a display that “promotes discrimination or discriminatory belief”. As a content-based restriction on speech, this exclusion is highly problematical from a First Amendment perspective.
While SB 201 is well-intentioned, it does serve to illustrate how difficult it is to draft legislation that affects religious practices without entangling the government in questions of religious belief.
Second Circuit Clarifies ADA Standard on Reasonable Accommodations
Employers in New York, Connecticut, and Vermont should take note of a recent Second Circuit decision holding that an employee may still be entitled to a reasonable accommodation under the Americans with Disabilities Act (“ADA”) even if they can perform the essential functions of their job without accommodation.
In Tudor v. Whitehall Central School District, (2d Cir. Mar 25, 2025), a circuit court panel vacated a district court’s grant of summary judgment in favor of Whitehall Central School District (“Whitehall”) on a failure-to-accommodate claim. The employee, a teacher with a longstanding history of PTSD, had been granted an accommodation in 2008 allowing her to leave campus for short breaks during morning and afternoon “prep periods”—times when she otherwise would not have been responsible for overseeing students. In 2016, a policy change prohibited teachers from leaving campus during these periods. Whitehall later permitted a morning break and, at times, an afternoon break when coverage was available.
The case focused on the 2019–20 school year, when the employee was assigned to supervise students during the time she would ordinarily take her afternoon break. She continued to take the breaks without formal approval, which she testified heightened her anxiety due to concerns about violating school policy. She later filed suit, alleging that Whitehall failed to reasonably accommodate her disability in violation of the ADA. The district court granted summary judgment to Whitehall, reasoning that because the employee admitted during the proceedings that she could perform her job without the requested accommodation, she could not establish a required element of her claim.
The Second Circuit disagreed, emphasizing that the ADA does not require an employee to show that an accommodation is necessary—only that it is reasonable. To establish a prima facie case under the ADA, an employee must show that: (1) their employer is subject to the ADA; (2) they were disabled within the meaning of the ADA; (3) they were otherwise qualified to perform the essential functions of their job, with or without reasonable accommodation; and (4) their employer refused to make a reasonable accommodation (emphasis added). The Second Circuit held that the ability to perform the essential functions of the job without an accommodation does not foreclose an employee’s failure-to-accommodate claim. The statutory language protects employees who can perform their jobs “with or without” accommodation and obligates employers to provide reasonable accommodations unless doing so would impose an undue hardship.
In reaching this conclusion, the court relied on the ADA’s plain text and aligned itself with the majority of other circuits in rejecting the idea that an employee must show an accommodation is necessary to perform the essential functions of their job in order to be entitled to one. It reiterated that the ADA is a remedial statute that must be construed broadly to eliminate discrimination against individuals with disabilities, and to say that an accommodation must be necessary in order to be reasonable would run counter to this purpose. The Second Circuit did note, however, that Whitehall may still raise other defenses on remand, including whether the employee had a qualifying disability or whether the requested accommodation would have posed an undue hardship.
A key takeaway for Second Circuit employers is that the ADA requires them to consider and, where appropriate, provide reasonable accommodations—even when an employee can perform essential job functions without one.
Illinois Federal Judge Blocks DOL From Enforcing Termination, Certification Provisions in Trump DEI-Related EOs
On March 27, 2025, a federal judge for the U.S. District Court for the Northern District of Illinois temporarily blocked the U.S. Department of Labor (DOL) from enforcing portions of two provisions in President Donald Trump’s diversity, equity, and inclusion (DEI)-related executive orders (EO).
Quick Hits
A federal judge in Illinois issued a temporary restraining order blocking the DOL from enforcing certain provisions in two executive orders aimed at eliminating “illegal” DEI programs.
The judge found certain provisions are coercive and undefined, likely violating the First Amendment.
The ruling comes amid multiple ongoing legal challenges related to DEI initiatives.
U.S. District Judge Matthew F. Kennelly issued a temporary restraining order (TRO) prohibiting the DOL from enforcing a “termination provision” that requires federal agencies to terminate grants or contracts with organizations that promote DEI and a “certification provision” that requires grant recipients to certify under the False Claims Act (FCA) that they do not have DEI or diversity, equity, inclusion, and accessibility (DEIA) programs.
The judge found that the termination and certification provisions in President Trump’s EO 14151 and EO 14173 are likely to violate the First Amendment of the U.S. Constitution and cause irreparable harm to the plaintiff, the Chicago Women in Trades (CWIT), a nonprofit group that helps prepare women to earn jobs in the trades.
Judge Kennelly said that the termination provision was “coercive” and could suppress disfavored speech because its vagueness created a chilling effect on CWIT’s activities.
“Here, the government is not selectively funding some programs, but not others; it is indicating an entire area of programming that is disfavored as ‘immoral’ (as well as illegal) and threatening the termination of funding unless grantees bring their conduct into line with the government’s policy agenda,” Judge Kennelly wrote in the decision.
The judge further found the certification provision, which requires grant recipients to certify they do not operate any DEI programs that “violate any applicable Federal antidiscrimination laws,” is problematic because the EO does not clearly define what constitutes “illegal” DEI activities and because its references to “programs promoting DEI” targets constitutionally protected speech there is a likely a First Amendment violation.
Notably, the court limited its ruling on the termination provision only to the plaintiff, CWIT, rather than issuing a nationwide injunction. However, the certification provision does apply nationwide but only to those being issued by the DOL and not all federal agencies.
The ruling comes just less than two weeks after the U.S. Court of Appeals for the Fourth Circuit, in a similar lawsuit, granted the government’s request to stay a nationwide preliminary injunction that had blocked the termination and certification provisions and a provision directing the attorney general to enforce civil rights laws against DEI programs in the private sector.
Following the Fourth Circuit’s stay of the nationwide preliminary injunction, CWIT sought an immediate TRO in its lawsuit. The group argued the stay created renewed urgency to stop the DOL from cutting its federal funding unless it “cease[s] all diversity, equity, inclusion and accessibility activities” and “scrub[s] all diversity, equity, and inclusion initiatives and related language from its programming.”
In addition to the CWIT case and the Maryland case, which is led by the National Association of Diversity Officers in Higher Education, civil rights groups led by the National Urban League have filed another legal challenge in the U.S. District Court for the District of Columbia. The groups are also seeking to block several provisions of EO 14151 and EO 14173, in addition to EO 14168, which defines sex as binary for purposes of federal policy. The D.C. court held a hearing on the group’s motion for preliminary injunction on March 19, 2025.
Next Steps
The TRO in the CWIT case is limited to the DOL, but its reasoning suggests that the judge may issue a broader preliminary injunction. The DEI-related EOs have created uncertainty for employers over what types of programs the government will consider to be “illegal” DEI programs and sparked several legal challenges. Inconsistent rulings in the federal courts have added to the uncertainty, and the possibility remains that the cases or issue of whether the DEI-related EOs are constitutional could ultimately land before the Supreme Court of the United States. The outcome of the cases will have far-reaching implications for employers and the promotion of programs meant to foster diversity in the workforce.
Virginia Enacts Law Protecting Reproductive and Sexual Health Data
On March 24, 2025, Virginia Governor Youngkin signed into law S.B. 754, which amends the Virginia Consumer Protection Data Act (“VCDPA”) to prohibit the collection, disclosure, sale or dissemination of consumers’ reproductive or sexual health data without consent.
The law defines “reproductive or sexual health information” as “information relating to the past, present, or future reproductive or sexual health” of a Virginia consumer, including:
Efforts to research or obtain reproductive or sexual health information services or supplies, including location information that may indicate an attempt to acquire such services or supplies;
Reproductive or sexual health conditions, status, diseases, or diagnoses, including pregnancy, menstruation, ovulation, ability to conceive a pregnancy, whether an individual is sexually active, and whether an individual is engaging in unprotected sex;
Reproductive and sexual health-related surgeries and procedures, including termination of a pregnancy;
Use or purchase of contraceptives, birth control, or other medication related to reproductive health, including abortifacients;
Bodily functions, vital signs, measurements, or symptoms related to menstruation or pregnancy, including basal temperature, cramps, bodily discharge, or hormone levels;
Any information about diagnoses or diagnostic testing, treatment, or medications, or the use of any product or service relating to the matters described above; and
Any information described above that is derived or extrapolated from non-health-related information such as proxy, derivative, inferred, emergent, or algorithmic data.
“Reproductive or sexual health information” does not include protected health information under HIPAA, health records for the purposes of Title 32.1, or patient-identifying records for the purposes of 42 U.S.C. § 290dd-2.
These amendments to the VCDPA will take effect on July 1, 2025.
Opinion: DEI & Bullying – Where Law, Politics and Business Need to Align
The recent news that Trump rescinded the executive order issued six days earlier against law firm Paul Weiss is a striking example of the intersections between politics, law, and business. According to Business Insider, “… since Trump’s earlier order to revoke its security clearances, the law firm has lost clients” and their government contracts were put at risk. The law firm’s security clearance has been reinstated after an agreement was reached with the Trump Administration.
For the legal profession, it seems to be the tip of the iceberg. Covington & Burling and Perkins Coie were issued separate executive orders on February 25 and March 6. And, on March 25 and 27, two more executive orders targeting prestigious firms were issued – Addressing Risks from Jenner & Block and Addressing Risks from WilmerHale.
Who’s next? Is the White House bullying law firms over DEI practices?
These incidents are part of a broader narrative unfolding across America, where political shifts are influencing business practices, and law firms, corporations, and elected officials find themselves at the crossroads of political ideologies and corporate responsibilities. In light of these developments, there is a growing concern about the broader implications for the workplace and business ethics.
For decades, DEI initiatives have functioned as guardrails in the corporate world, ensuring fair treatment in hiring, promoting inclusivity, and fostering environments where bias is actively mitigated. These practices, designed to level the playing field, were never about special advantages. Instead, they emphasized fairness—hiring and promoting the right person for the right job, regardless of their background.
Corporate America in the pre-DEI era was a very different place, often characterized by unchecked biases, discrimination, and exclusion. Although we’ve made significant progress, there are individuals and organizations that still foster a negative professional culture.
Pressure on law firms to drop DEI practices comes amid broader efforts to scale back DEI across corporate America, including sectors that have seen significant benefits from inclusive hiring. According to Business Insider, “… companies like Walmart, Meta, and Lowe’s have all rolled back their DEI programs.”
The erosion of protections that have improved workplaces over the past 20 years will reverse much of the progress made over the past few decades – but will not erase it. There are too many people—managers, employees, customers, investors—who believe in the practice, whether supported by policy or not.
And, these protections have not only created safer, more inclusive environments but have also contributed to better business outcomes. Diverse teams, after all, produce more innovative solutions, offer broader perspectives, and serve diverse client bases more effectively. And, even with DEI in place, many corporations misbehave, particularly under the guise of “business as usual.”
Employees are the lifeblood of any organization. Creating a happy, productive, and safe work environment is essential to the success of any company. DEI initiatives—and a movement toward a safe, fair workplace—have been an essential part of fostering these environments, ensuring that all employees have the opportunity to succeed, regardless of their background or company culture.
However, if companies are allowed to abandon these initiatives, I fear that we will see a return to the corporate cultures of the past, rife with discrimination, exclusion, bias and bullying.
“In the words of William Edward Demming, ‘a bad system will always beat a good person’,” said Sharon Mahn, Esq., a leading legal recruiter and workplace expert. “Equality in the workplace means ensuring that everyone, regardless of their background or characteristics, has the same opportunity and is treated fairly.”
Even with DEI and legal protections in place, some corporations seem to behave badly. Without these checks and balances, this type of behavior will become more widespread.
The intersection of politics and law in business is unavoidable. Political decisions, such as Trump’s executive orders, can have wide-reaching effects on corporate practices, and law firms are forced to make very difficult decisions for the sake of multiple stakeholders. Legal structures, on the other hand, provide the mechanisms for enforcing fairness.
When politics and law fail to align with business ethics, the consequences for employees and organizations alike can be catastrophic.
The opinions expressed in this article are those of the author and do not necessarily represent those of The National Law Review.
OCR Provides Further Guidance About When DEI Violates Title VI
On February 14, 2025, the Department of Education’s Office for Civil Rights (“OCR”) issued a Dear Colleague Letter (“DCL”) which explained that schools had “discriminated against students on the basis of race, including white and Asian students” and had “justify[ed] their discrimination “under the banner of ‘diversity, equity, and inclusion’ (“DEI”)[.]” Hunton’s analysis of this DCL is available here.
On March 1, 2025, the OCR issued further guidance on Title VI in the form of Frequently Asked Questions (“FAQ”). These FAQs clarified the DCL’s stance toward illegal DEI programming. The FAQ explained that whether DEI programming violates Title VI does not depend on the use of terminology – including “diversity,” “equity,” and “inclusion,” – but rather on whether the DEI programming restricts or discourages access based on race, or creates a race-based hostile environment.
The FAQs explained that, where DEI programming is race-neutral, OCR may consider the following factors to determine whether a school acted with a racially discriminatory purpose:
Whether members of a particular race were treated differently than similarly situated students of other races;
The historical background or administrative history of the policy or decision;
Whether there was a departure from normal procedures in making the policy or decision;
Whether there was a pattern regarding policies or decisions towards members of a particular race;
Statistics demonstrating a pattern of the policy or decision having a greater impact on members of a particular race; and
Whether the school was aware of or could foresee the effect of the policy or decision on members of a particular race.
The DCL is recommended reading for all institutions of higher education seeking to navigate their responsibilities under Title VI, but there are additional key points for colleges and universities to consider as they are navigating these issues.
Access to Educational Opportunities
The DCL referred to race-based affinity spaces, housing, or graduation ceremonies as discriminatory, and the FAQ contextualized this, explaining that such programming is discriminatory if it “allows one race but not another or otherwise separates students, faculty, or staff based on race.”
The DCL referred to curriculum, and the FAQ clarified “nothing in Title VI, its implementing regulations, or the Dear Colleague Letter requires or authorizes a school to restrict any rights otherwise protected by the First Amendment.” In addition, the FAQ balances this statement by reiterating schools’ obligations to prevent a hostile environment and address racial harassment. In determining whether certain curriculum discussing race from a historical and sociological perspective would qualify as creating a hostile environment, the FAQ noted that such discussions may be considered hostile in an elementary school, but not out of place in a university classroom.
Creation of a Hostile Environment based on Race
The FAQ provided examples of school activities that could create a hostile environment by requiring employees or students to:
Engage in political activism such as protests or privilege walks.
Embrace specific perspectives on race-related issues, and investigating or disciplining them if they do not.
Participate in trainings, orientations, coursework, or courses that reinforce racial stereotypes, challenge speech protected under the First Amendment.
Accept different disciplinary measures based on their racial group.
The FAQ clarified that schools are permitted to continue cultural programming and discussions on race-related topics, provided they do not limit access or create a racially hostile environment. In assessing programming, schools should consider whether it would discourage member of all races from attending.
While OCR has tempered its stance on race-related programs and educational access with the FAQ, it is recommended that schools continue to take steps to review policies, procedures, and practices, including those involving admissions and access to academic, extracurricular, and financial support programs to ensure compliance with Title VI.
Navigating Whistleblower Protections and Compliance with DEI Executive Orders
As Polsinelli has discussed, President Donald Trump issued Executive Order No. 14151 titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” and Executive Order No. 14173 titled “Ending Radical and Wasteful Government DEI Programs and Preferencing” (collectively, the “Orders”) shortly after taking office, and that a District Court of Maryland enjoined certain aspects of those Orders. The Trump administration appealed the District Court’s decision, and on March 14, 2025, the U.S. Court of Appeals for the Fourth Circuit granted the Trump administration’s request for a stay (i.e., pause) of the injunction pending the outcome of the appeal. This means that during the appeal, the Orders are in full force and effect.
There are many articles discussing the importance of employers taking steps to determine whether their actions, policies and procedures may violate the Orders.
Given the back-and-forth nature of the decisions related to the Orders, a question that some employers may have is whether an employee is protected from retaliation if they report that they believe their employer is violating one of the Orders, but that Order is eventually struck down. Employers may be surprised to learn that if an employee reasonably believes the employer’s activity violates a legal provision (here, for example, the Orders), then they may be protected even if the Orders are later revoked or struck down.
Whistleblower Protections and Potential Activity Related to the DEI Executive Orders
What might protected activity look like with regard to these Orders? Examples of potential whistleblowing activity could include:
An employee may report the employer is continuing DEI programs, trainings or initiatives that they believe violate the Orders prohibiting race- or gender-based preferences.
An employee may report that an employer or an employee of the employer is prioritizing hiring, promotions or contracting decisions based on race, gender or other DEI-related criteria.
An employee may report that their employer is requiring them to participate in DEI training and claim such training promotes race- or gender-based biases, in violation of the Orders.
Employees working for federal contractors may report that their employer is not following the Orders’ requirements regarding DEI restrictions in government-funded projects or is inaccurately certifying compliance with DEI-related contract terms.
How Should Employers Respond to Whistleblowing?
When an employee reports a concern or engages in whistleblowing activities, employers should carefully evaluate and respond to the allegations. Steps an employer should consider taking include:
Assessing the complexity and seriousness of the employee’s complaint and, if appropriate, consider an investigation conducted under the attorney-client privilege or by an external investigator in conjunction with human resources.
Documenting findings and actions taken.
Maintaining a communication channel with the employee throughout the process.
Communicating with the employee that the investigation has concluded, sharing appropriate information considering the privacy of other employees and privilege considerations.
A well-handled response not only helps address and potentially resolve immediate concerns but also demonstrates the company’s commitment to compliance and transparency, reducing potential legal exposure.
Given the current fast-changing circumstances, now may be a good time for employers to review their complaint reporting procedures. An effective internal reporting system typically will be accessible, confidential and supported by a clear policy that outlines the process for handling reports and the protections available to employees.
How Should Employers Treat Whistleblowers?
Employers should not try to identify who made a report of an alleged violation of law to a governmental agency, particularly if the agency is then investigating the employer. That information is usually not necessary to respond to the report and could create additional risk for the employer.
If an employer knows who has made a complaint, then the employer should treat that employee with the same level of care it would afford its other employees. In particular, the complaining employee should not be held to a higher performance or behavior standard.
That said, making a complaint does not mean that an employee cannot be held to performance and behavior standards. Nor does making a complaint mean that an employee cannot be separated from employment for lawful reasons. However, as in many areas, employers would be wise to consult counsel before taking adverse action against an employee if the employee has recently complained that the employer has violated the law. This is so because many courts have held that close timing is enough to infer a retaliatory motive. Thus, employers should be very careful to show that it has a legitimate, non-retaliatory reason for separating an employee who it knows has complained (rightly or wrongly) of a violation of law, particularly if that complaint occurred close in time to when the separation will occur.
Next Steps for Employers
Employers should also consider regularly reviewing their policies and procedures to ensure ongoing compliance with applicable law. Reviewing policies and procedures with legal counsel can help identify areas of risk and ways to implement changes. By taking a proactive approach to compliance and employee relations, employers can create a positive work environment that supports both legal obligations and business objectives.
Finally, employers particularly impacted by the recent changes may want to consider offering training to managers by knowledgeable trainers who can explain these new laws and how they may change the way an employer operates.
Ensuring Employee Selection Procedures Comply with California Law
California’s Fair Employment and Housing Act (FEHA) prohibits discrimination both in the selection of employees and during employment based on certain protected characteristics. Federal law provides similar protections under Title VII of the Civil Rights Act of 1964. Consequently, California employers must ensure their employee selection process is free from discrimination.
Any selection policy or practice that disproportionately impacts individuals based on the protected characteristics enumerated below is unlawful unless it is job-related and consistent with business necessity.
Employers must design and implement their selection procedures, including tests and interviews, to make certain they are fair and equitable. FEHA prohibits any non-job-related inquiries of applicants or employees, either verbally or through the use of an application form, that express, directly or indirectly, a limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation, or any intent to make such a limitation, specification, or discrimination.
Employers should also be cognizant of the following requirements under FEHA:
Requests for Transfer or Promotion: Employers must consider such requests and must not restrict information on promotion and transfer opportunities in a way that discriminates based protected categories.
Training: Employers must provide training opportunities equitably.
No-Transfer Policies: Policies maintaining segregation based on protected categories are prohibited.
CA employers must also comply with laws such as the Fair Chance Act, which requires specific procedures when conducting background checks of applicants and prohibits employers with five or more employers from asking candidates about their conviction history before making a job offer.