Insider Threats: Potential Signs and Security Tips
In recent news, New York’s Stram Center for Integrative Medicine reported a security incident involving an employee misusing a patient’s payment card information. According to a breach report filed with the U.S. Department of Health and Human Services Office for Civil Rights, the incident may have involved 15,263 patients’ information—even though the bad actor only misused one patient’s payment card. The individual has been arrested and is no longer employed. According to the Stram Center, social security numbers are not involved, but it is offering complimentary credit monitoring and identity protection services to affected individuals.
When we hear “data breach,” we’re likely to think of ransomware incidents, business email compromises, and other cyberattacks from external threats. However, according to a Cybersecurity Insiders report, 83% of organizations reported at least one insider attack in 2024. According to IBM’s 2024 Cost of a Data Breach report, data breaches resulting from insider threats were the costliest, at $4.99 million on average. While insider threats may not make headlines as frequently, organizations should take measures to mitigate risks surrounding insider data incidents. Insider threats include unintentional errors, such as emailing personal information to the wrong recipient, misplacing documents, and speaking about personal information among those without authorized access. Insider threats also include malicious insider threats, such as disgruntled employees.
Organizations should monitor for several signs that may signal a malicious insider threat:
Timing of access – Malicious insiders may access the network and systems at unusual times. If an employee typically only works night shifts but the user’s access logs suddenly reflect daytime activity, this could indicate potential malicious activity.
Unexpected spikes in network traffic – Atypical spikes in network traffic might reflect that a user is downloading or copying large volumes of data.
Unusual requests – If a user is requesting access to applications or information that are beyond the scope of their role or unusual for team members in similar roles, this could signal malicious intent.
Several security practices can help organizations reduce the risk of insider attacks:
Endpoint monitoring – Constant endpoint monitoring can help organizations analyze user and entity behavior, scan networks, and detect potential early signs of insider activity.
Role-based access – Employees should only have access to the information that they need to fulfill their job responsibilities. Providing employees access on a least-privilege basis helps minimize the risk of unauthorized access and misuse.
Culture of awareness – Regular cybersecurity training, including on best practices such as locking one’s computer and maintaining proper password hygiene, can help minimize unauthorized insider access.
Since malicious insiders often already have some level of existing access to an organization’s systems and knowledge of business practices and organization policies, such threats can cause significant harm. Insider threat prevention should be an integral component of all organizations’ overall cybersecurity posture.
EEOC and DOJ Shed Light On What Constitutes “Illegal DEI” (US)
The Trump Administration’s recent targeting of “diversity, equity, and inclusion” (DEI) initiatives in the workplace has left many employers both in the public and private sectors with uncertainty and unease regarding the scope of executive orders prohibiting “illegal DEI” and how they impact their diversity programming. Although the term “illegal DEI” has been discussed at length by the Trump Administration, it had remained undefined until March 19, 2025. On that date, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) jointly released guidance on how DEI initiatives can constitute unlawful discrimination under Title VII and the protections and recourse available to employees. The EEOC and DOJ released a joint one-page technical assistance document titled “What to Do If You Experience Discrimination Related to DEI at Work.” The EEOC also released a longer question-and-answer technical assistance document – “What You Should Know About DEI-Related Discrimination at Work.” These guidance documents are aimed at helping employees know their rights and helping employers take action to avoid conduct that is now considered unlawful DEI-related discrimination by those agencies responsible for enforcing anti-discrimination legislation.
The guidance first acknowledges that DEI is a broad term that is not defined by statute, but states that DEI policies, programs or practices may be unlawful under Title VII – the federal law that prohibits discrimination in employment on the basis of race, color, sex, gender and religion – “if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s race, sex, or another protected characteristic.” Discrimination may occur if race, sex or another protected characteristic is just one deciding factor, not the sole deciding factor, in an employment decision. This does not just cover conduct such as using diversity-based quotas, but includes disparate treatment; limiting, segregating and classifying employees; harassment; and retaliation.
Disparate Treatment
Disparate treatment under DEI refers to discriminating against applicants or employees in the terms, conditions or privileges of employment. Notably, the EEOC includes in its list of examples:
access to or exclusion from training (including training characterized as leadership development programs);
access to mentoring, sponsorship or workplace networking/networks;
internships (including internships labeled as “fellowships” or “summer associate” programs); and
selection for interviews, including placement or exclusion from a candidate “slate” or pool.
Limiting, Segregating and Classifying Employees
The EEOC and DOJ guidance also advises that Title VII prohibits employers from “limiting, segregating, or classifying employees based on race, sex, or other protected characteristics in a way that affects their status or deprives them of employment opportunities.” This includes limiting membership to Employee Resources Groups – groups that typically provide professional growth training, networking and mentoring opportunities for minorities in the workplace – or other employee affinity groups or separating employees into groups based on protected characteristics when administering DEI or other training, even if the same programming content is offered to all groups. Employers should ensure that “employees of all backgrounds have equal access to workplace networks.”
Harassment
According to the guidance, DEI training now can also constitute unlawful harassment in violation of Title VII. The EEOC and DOJ notably state that DEI training can give rise to a colorable hostile work environment claim by pleading that the training was discriminatory in content, application or context.
Retaliation
Title VII prohibits employers from retaliating against an employee because he or she engaged in protected activity under the statute. Under EEOC and DOJ guidance, reasonable opposition to a DEI training may constitute protected activity if the employee provides a fact-specific basis for his or her belief that the training violates Title VII.
The EEOC Q&A document provides an overview of who is covered under Title VII and the administrative process of bringing a Title VII claim. The EEOC Q&A additionally clarifies that Title VII protections do not apply just to individuals who are part of a minority group but instead apply equally to all workers, and the EEOC does not require a higher burden of proof for “reverse” discrimination claims. The EEOC also cautions that an employer cannot justify its DEI initiatives as a business necessity, interest in diversity or customer/client preference.
Takeaway
Through these technical assistance documents, the EEOC and DOJ have attempted to define “illegal DEI” and explain the contours of prohibited DEI programming. Employers should use these guidelines when considering whether to reevaluate their current DEI programs and determine if they are consistent with the EEOC/DOJ’s definition. Although it is clear that the Trump Administration intends to pursue aggressive enforcement against public and private employers that it believes engage in illegal DEI, employers do not need to respond by completely dismantling their DEI programming. For example, Employee Resource Groups do not appear to violate Title VII so long as membership and opportunities are open to all employees. Even if scaling back DEI programs, employers should ensure there are alternative measures in place that address workplace discrimination and equity. Even with this guidance, there are still many gray areas that remain, and it is unclear if courts will interpret Title VII consistent with these EEOC guidelines. Employers should work with legal counsel to carefully review their DEI, training and mentoring activities and follow any updates on the legal challenges to Trump’s DEI-related executive orders.
EEOC and DOJ Issue Guidance on DEI-Related Discrimination
On March 19, the US Equal Employment Opportunity Commission (EEOC) and the US Department of Justice (DOJ) released two technical assistance documents focused on educating the public about “unlawful discrimination” related to diversity, equity, and inclusion (DEI) in the workplace.
The guidance follows several executive orders issued by the Trump Administration relating to DEI and comes at a time when many employers are struggling over what, if anything, to do with their DEI policies and programs.
The Joint Guidance
The EEOC and the DOJ jointly released a one-page technical assistance document aimed at educating the public about how well-established civil rights statutes like Title VII, the primary federal statute prohibiting discrimination in employment, apply to employment policies, programs, and practices — including those labeled or framed as “DEI.” Find the joint guidance document here.
The guidance states that under Title VII, DEI policies, programs, or practices “may be unlawful if they involve an employer or other covered entity taking an employment action motivated — in whole or in part — by an employee’s race, sex, or another protected characteristic.” It further states that in addition to unlawfully using quotas or otherwise “balancing” a workforce by race, sex, or other protected traits, DEI-related discrimination in the workplace might include:
Disparate treatment in the terms, conditions, or privileges of employment.
Limiting, segregating, or classifying employees and applicants based on race, sex, or other protected characteristics.
Harassment based on protected characteristics in DEI training.
Retaliation against individuals who engage in “reasonable” opposition to DEI training.
The guidance observes that “Title VII protects employees, potential and actual applicants, interns, and training program participants.” It also advises individuals who think they “have experienced DEI-related discrimination” to file a charge with their local EEOC office.
The EEOC’s Guidance
The EEOC also released a longer question-and-answer technical assistance document. According to EEOC Acting Chair Andrea Lucas: “Far too many employers defend certain types of race or sex preferences as good, provided they are motivated by business interests in ‘diversity, equity, or inclusion.’ But no matter an employer’s motive, there is no ‘good,’ or even acceptable, race or sex discrimination.”
After advising private and federal employees to file charges of discrimination with the EEOC if they feel they have been a victim of DEI discrimination, the agency explains how it will evaluate such claims. Noteworthy points from the guidance include:
Title VII’s protections apply equally to all workers, and not just “individuals who are part of a minority group” or are “historically under-represented.” Different treatment based on race, sex, or another protected characteristic can be unlawful discrimination, no matter which employees or applicants are harmed.
The EEOC does not require a higher showing of proof for so-called “reverse” discrimination claims. The EEOC’s position is that there is no such thing as “reverse” discrimination; there is only discrimination, which occurs when an employment action is motivated in whole or in part by race, sex, or any other protected characteristic. The EEOC applies the same standard of proof to all race discrimination claims, regardless of the victim’s race.
Title VII protects not just employees, but also applicants and training or apprenticeship program participants. Title VII may also apply to interns who, depending on the facts, may be covered as employees, applicants, or training program participants.
Among other things, Title VII prohibits employers from limiting, segregating, or classifying employees or applicants based on race, sex, or other protected characteristics in a way that affects their status or deprives them of employment opportunities. This prohibition applies to employee activities that are employer-sponsored (including where the employer makes available company time, facilities, or premises, and other forms of official or unofficial encouragement or participation). These activities can include employee clubs or groups, such as Employee Resource Groups or other employee affinity groups, where membership or participation is restricted to certain protected classes.
Employers instead should provide “training and mentoring that provides workers of all backgrounds the opportunity, skill, experience, and information necessary to perform well, and to ascend to upper-level jobs.” Employers also should ensure that “employees of all backgrounds … have equal access to workplace networks.” This would preclude professional development or training programs that are intended to increase opportunities for advancement of members of historically under-represented groups.
Employers cannot rely on client or customer preferences as a defense to race or color discrimination. Basing employment decisions on the racial preferences of clients, customers, or coworkers constitutes intentional race discrimination. Employment decisions based on the discriminatory preferences of clients, customers, or coworkers are just as unlawful as decisions based on an employer’s own discriminatory preferences.
The Supreme Court has never found that general business interests in diversity and equity (including perceived operational benefits or customer/client preference) can justify race-motivated employment actions, nor has the EEOC.
Depending on the facts, an employee may be able to plausibly allege that diversity or other DEI-related training created a hostile work environment if they show that the training was discriminatory in content, application, or context.
Opposition to a DEI training may constitute protected activity if the employee provides a fact-specific basis for his or her belief that the training violates Title VII.
The new guidance from the EEOC and DOJ makes clear that DEI-related activities will continue to be a significant enforcement priority, and it highlights the need for employers to audit their programs and policies to ensure that they do not run afoul of the principles described above. In particular, employers should take immediate steps to ensure they do not offer or support any training or professional development programs, internships, fellowships, or employee resource groups where membership or participation is limited only to members of a certain protected class. Although the guidance does not indicate that employers should abandon anti-discrimination or diversity training, it is recommended that employers review their training materials to ensure that they do not include any concepts that could arguably be construed as discriminatory.
Notably, the guidance does not expressly discuss any DEI activities that the EEOC or DOJ would find lawful. However, the guidance also does not suggest that employers are prohibited from engaging in efforts to recruit from a diverse applicant pool, so long as ultimate hiring decisions are based on the candidates’ qualifications.
Fourth Circuit Stays Preliminary Injunction of Executive Orders Related to DEI Programs
On March 14, 2025, the US Court of Appeals for the Fourth Circuit issued a stay on the US District Court for the District of Maryland’s nationwide preliminary injunction of US President Donald Trump’s executive orders (EOs) that target diversity, equity, and inclusion (DEI) programs – namely, EO Nos. 14151 and 14173 – which allows the government to implement and enforce the EOs while litigation continues.
In Depth
In granting the stay, each member of the three-judge panel issued a concurring opinion explaining their reasoning. Chief Judge Albert Diaz and Judge Pamela Harris agreed that the government showed a sufficient likelihood that it will succeed in demonstrating that the EOs are not unconstitutional, in part because the EOs are limited in scope. For example, the EOs do not state that all efforts to advance DEI are illegal; rather, the “certification” and “enforcement threat” provisions apply only to conduct that violates existing anti-discrimination laws. Additionally, the “termination” provision directs the termination of grants based on the nature of the grant-funded activity, not the grantee’s external speech or activities, which both judges noted might implicate First and Fifth Amendment concerns. Judge Diaz further hinted that the anti-DEI EOs may be unconstitutionally vague as they lack clear definitions of what types of programs the Trump administration seeks to eliminate. Judge Allison Jones Rushing considered the injunction overbroad and believes the government is likely to demonstrate that the anti-DEI EOs are constitutional directives by the president to his officers. Judge Rushing also noted that the case may not be ripe for review because there is no specific agency action being challenged.
The ruling is not a final decision on the legality of the EOs. It merely allows the government to administer the policy while litigation continues. The Fourth Circuit will retain jurisdiction to hear the case on the merits and has agreed to an expedited briefing.
A final ruling on the merits is expected in the next three to six months. In the meantime, employers should keep working with legal counsel to proactively audit their DEI policies to ensure compliance with existing laws while maintaining alignment with company values.
Alivia Combe-DuQuet contributed to this article
DEI-Related Executive Orders Move Forward After Fourth Circuit Grants Stay of Preliminary Injunction; Federal Agency Actions
On March 14, 2025, the Fourth Circuit Court of Appeals issued a stay of the U.S. District Court’s preliminary injunction, which will allow the Trump administration to continue enforcing the Executive Orders (EOs) related to Diversity, Equity and Inclusion (DEI) programs while the litigation continues.
The National Association of Diversity Officers in Higher Education filed a lawsuit in the U.S. District Court for the District of Maryland (Maryland District Court) challenging the constitutionality of the following EOs, arguing they are vague under the Fifth Amendment and violate the First Amendment’s Free Speech Clause:
Executive Order 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing.”
Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”
Earlier, the Maryland District Court issued an injunction against three key provisions in the two Executive Orders, effectively blocking the federal government from enforcing: 1) the termination of equity-related grants or contracts by executive agencies, 2) a requirement for federal contractors and grantees to certify that they will not operate DEI programs that violate federal anti-discrimination laws and 3) the U.S. Attorney General’s authority to investigate and initiate civil compliance actions against private sector entities continuing DEI practices.
Federal agencies have taken actions to enforce the EOs. Below are examples of three federal agencies that have issued guidance and enforcement letters to public and private entities on ensuring they are compliant with removing DEI from its policies, practices and other programs.
Federal Agencies: Guidance and Enforcement Letters from the DOE, HHS and EEOC Guidance from The Department of Education
Guidance by federal agencies regarding DEI has been published since the signing of the EOs. In its initial Dear Colleague Letter issued on February 14, 2025, the Department of Education (DOE) advised educational institutions receiving federal funding to stop using race, color or national origin in decisions related to admissions, hiring, promotions, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies and all aspects of campus life.1 Additionally, the DOE advised that institutions are prohibited from using non-racial information (such as personal essays) as a proxy for race when making decisions.2 For example, the DOE asserts that using a students’ personal essays or other materials to determine a student’s race would constitute the misuse of non-racial information when used to make decisions about the student’s admission or status.3 To further clarify its guidance, the DOE shared a frequently-asked-questions (FAQs)4 document stating that “race cannot be used as a proxy for socioeconomic disadvantage.”5
The DOE emphasized that simply using terms like “diversity,” “equity” or “inclusion” is not enough to determine whether a program or policy violates federal law. The DOE’s Office for Civil Rights (OCR) will review additional materials for more subtle forms of discrimination. The DOE has stated that institutions failing to comply may face the potential loss of federal funding.6 The department has set up a new website where private individuals can report a school or school district for discriminatory practices.
On March 14, 2025, the DOE and the OCR published a press release that it has launched Title VI and Title IX investigations into 52 universities in 41 states in order to “reorient civil rights enforcement to ensure all students are protected from illegal discrimination.” The departments are looking into the universities’ race-based practices in their graduate and scholarship programs.
Pushback Against DOE’s Dear Colleague Letter
In response to the DOE’s Dear Colleague Letter, 14 state Attorneys General issued guidance7 on March 5, 2025 setting out their position that the EOs and the DOE’s guidance do not change current laws. These Attorneys General argued that the DOE misinterprets the SFFA ruling, and that while schools cannot use race as a factor in admissions, they can still evaluate applicants who discuss how race has influenced their lives—provided the mention of race ties back to “that student’s courage and determination.”8 In essence, these Attorneys General advise that schools cannot factor race into admissions decisions but may “consider the ways… race affected a particular student’s life.”9
HHS Investigates Alleged Discrimination in Medical School and Health Care Workforce Training Programs
On March 7, 2025, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) announced it is investigating four medical schools and hospitals that may be operating programs for education, training, or scholarships that discriminate based on race, color, national origin or sex. These investigations align with President Trump’s Executive Order 14173. The stated focus is on ensuring that healthcare professionals and students are not excluded from opportunities based on these factors. OCR’s actions are intended to enforce the Trump Administration’s position that DEI Programs violate civil rights laws under Title VI of the Civil Rights Act of 1964 and Section 1557 of the Affordable Care Act.
EEOC Requesting DEI-Related Employment Practices of 20 National Law Firms
On March 17, 2025, based on publicly available information, Equal Employment Opportunity Commission (EEOC) Acting Chair Andrea Lucas sent letters to 20 law firms requesting each firm’s employment practices with respect to using DEI or other employment programs that would violate Title VII of the Civil Rights Act of 1964. These firms are asked to create spreadsheets with personal information of each applicant for its diversity internship, fellowship and scholarship programs. The data points include the name, race, sex and GPA of the applicants. If the applicants were selected for these programs, the EEOC asks for the applicants’ compensation during the program, whether they received a full-time associate attorney position, and whether they received additional funds. Additionally, the letters requested similar data in relation to the firm’s compensation and partnership decisions, and whether any DEI or diversity considerations (ex. participation in firm-sponsored or third-party affinity group) play a role in such decisions. The information requested dates as far back as 2015.
What Does This Mean for Organizations and Employers?
Given the rapidity with which new orders, guidance, and judicial decisions are being issued, it is important for organizations and employers to stay as current as possible on legal developments.
All organizations and employers, but particularly grant recipients and federal contractors, should consider reviewing any DEI-related documents, policies, programs, initiatives, affirmative action plans, etc. for potential issues. This may include going beyond the obvious, and evaluating scholarship programs, hiring policies and processes, onboarding and application documents, marketing materials, governing documents, trainings, compensation and performance materials, equity language, mission and vision statements, internship programs and website language.
Organizations and employers may also want to review their workplace facility and pronoun usage policies. These policies and initiatives should apply equally to be lawful. In addition, organizations and employers may want to do department level reviews to ensure all DEI-related documents and materials are properly evaluated.
Finally, federal contractors do have a deadline by which to comply with Executive Order 14173. Thus, they likely will want to put additional resources to this task in the short-term. Other employers should begin evaluating these documents and be ready to show good faith efforts in case of questions from employees or governmental agencies.
[1] Craig Trainor, United States Department of Education (Feb. 14, 2025), https://www.ed.gov/media/document/dear-colleague-letter-sffa-v-harvard-109506.pdf.
[2] Id. at 3.
[3] Id. at 2.
[4] Press Release, U.S. Department of Education, U.S. Department of Education Releases Frequently Asked Questions on Dear Colleague Letter About Racial Preferencing (Mar. 1, 2025), https://www.ed.gov/about/news/press-release/us-department-of-education-releases-frequently-asked-questions-dear-colleague-letter-about-racial-preferencing.
[5] United States Department of Education (Feb. 28, 2025), https://www.ed.gov/media/document/frequently-asked-questions-about-racial-preferences-and-stereotypes-under-title-vi-of-civil-rights-act-109530.pdf.
[6] Craig Trainor at 4.
[7] The Attorneys General of Illinois, Massachusetts, New York, California, Connecticut, Delaware, Maine, Maryland, Minnesota, New Jersey, Nevada, Oregon, Rhode Island, Vermont, and the District of Columbia, Office of the New York State Attorney General (Mar. 5, 2025), https://ag.ny.gov/sites/default/files/publications/joint-guidance-re-school-programs-guidance-2025.pdf.
[8] Id. at 2 n.7.
[9] Id. at 2.
What’s the Latest News with DEI?
As you know, there’s been a frenzy around DEI initiatives this year in the of wake President Trump’s executive orders regarding diversity, equity, and inclusion programs. We addressed the executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” here, and our Bradley colleagues in the Government Enforcement Practice Group weighed in on DEI for government contractors. So, what’s the latest update? The EEOC is on the hunt.
While many organizations filed lawsuits challenging the DEI executive orders on various constitutional grounds, including free speech, the EEOC and other organizations (like state departments of education) are pushing forward with the war on DEI efforts. On Monday, the EEOC made clear that its crosshairs are set on DEI initiatives. In a press release, Acting Chair Andrea Lucas stated the EEOC is “prepared to root out discrimination anywhere it may rear its head” and indicated that the commission issued letters requesting information to 20 law firms concerning their DEI efforts.
More on the Letters
The letters total 210 pages, are all issued by Lucas, and focus on requesting a significant amount of information from each law firm related to their various diversity and inclusion initiatives, data regarding criteria used for internships, recruitment, and internal promotions of lawyers, and reports or plans relating to DEI initiatives. The letters report that the EEOC used only public information to evaluate statements made by the various law firms and uses those public statements (and in some cases court filings) as the basis for requesting such information. The letters claim the DEI “programs, policies, and practices may entail unlawful disparate treatment in terms, conditions, and privileges of employment, or unlawful limiting, segregating, and classifying based—in whole or in part—on race, sex, or other protected characteristics, in violation of Title VII.” Lucas also informed one organization that the “sudden, overnight removal of” the policies from the firm’s webpage give her pause.
What Should You Do?
As we said before, if you want to continue DEI efforts, do so thoughtfully, recognize the risks and, if you have not already, take the steps below:
Conduct a review, but first retain counsel. If you have not already, now is the time to conduct a review of your company’s DEI policies and programs. Before initiating that review, we recommend retaining legal counsel to assist with the review and to provide insight as to all the potential risks. Also, make sure the review is privileged. Make sure your company is not using quota systems based on protected characteristics.
Resist the urge to remove or update policies without first consulting legal counsel. Understand that sudden changes in policies may give the EEOC pause, but they may also be important to comply with the executive orders. Do not rush into a change without thinking it through.
Continue training. Train your supervisors and other decision-makers on best practices, so they know employment decisions should never be motivated by race, sex, or any other protected characteristic. Hiring based on merit is always the best practice.
Be inclusive. Identify ways to help all of your workforce feel included during these unpredictable and everchanging times.
Finally, stay tuned to our blog as we will keep you updated with the latest news in this area.
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EEOC Answers Questions About What Constitutes Illegal DEI Programs
The U.S. Equal Employment Opportunity Commission (EEOC) recently released two technical assistance documents to explain what constitutes illegal diversity, equity, and inclusion (DEI) programs in the workplace. The technical assistance documents align with several executive orders on DEI that President Donald Trump issued shortly after he took office—which are being challenged in court.
Quick Hits
The EEOC recently issued two documents to clarify what the Trump administration considers to be illegal DEI programs.
According to these documents, discrimination may occur if race, sex, or another protected characteristic is just one deciding factor, not the sole deciding factor, in an employment decision.
The guidance suggests employers should open all training and mentoring programs to all demographic groups.
The guidance confirms that employee resource groups or affinity groups may be unlawful if they are not open to everyone.
On March 19, 2025, the EEOC released a technical assistance document called “What You Should Know About DEI-Related Discrimination at Work.” With the U.S. Department of Justice (DOJ), the EEOC also released a one-page document called “What To Do If You Experience Discrimination Related to DEI at Work.” These documents were issued on the heels of Executive Orders 14151 and 14173, aimed at “illegal” DEI initiatives in the federal government and private employment.
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination and harassment based on race, color, sex, national origin, and religion, among other protected characteristics not listed in the technical assistance documents. In a Q&A format, the EEOC stated that an employer’s DEI policy, program, or practice may be unlawful under Title VII if it involves “taking an employment action motivated—in whole or in part—by race, sex, or another protected characteristic.” The EEOC stated that “DEI-related disparate treatment” could include disparate treatment in hiring, firing, promotion, demotion, compensation, and fringe benefits, as well as disparate treatment in:
Access to or exclusion from training;
Access to mentoring, sponsorship, or workplace networking/networks;
Internships, including fellowships or summer associate programs; and
Selection for interviews, including placement or exclusion from a candidate pool.
The EEOC advised employers to offer “training and mentoring that provides workers of all backgrounds the opportunity, skill, experience, and information necessary to perform well and to ascend to upper-level jobs. Employers also should ensure that employees of all backgrounds have equal access to workplace networks.”
The EEOC cautioned employers that they cannot use general business interests, or customers’ and clients’ preferences, as a reason for treating employees disparately based on race, sex, or another protected characteristic. The EEOC recognized bona fide occupational qualifications provide lawful grounds for employment decisions in limited circumstances but do not otherwise make preference-based decisions lawful.
The EEOC noted that DEI training may create legal risk if the training is discriminatory in content, application, execution, or context.
Affinity groups, sometimes called employee resource groups, may be problematic, according to these EEOC guides, if they are not open to everyone or limit terms and conditions of employment to only certain members with certain protected characteristics. The EEOC stated, “Title VII also prohibits employers from limiting, segregating, or classifying employees or applicants based on race, sex, or other protected characteristics in a way that affects their status or deprives them of employment opportunities. This prohibition applies to employee activities that are employer-sponsored, including by making available company time, facilities, or premises, and other forms of official or unofficial encouragement or participation), such as employee clubs or groups.”
Next Steps
The Trump administration’s executive orders on DEI in the workplace are being challenged in court. While it is too early to tell what the ultimate outcome of those cases will be, employers may wish to carefully review the two new technical assistance documents to understand the EEOC’s interpretations and likely enforcement activity. Furthermore, employers may wish to inventory their training and mentoring programs and other practices to determine if any of them conflict with the EEOC’s statement of the law and enforcement priorities.
Federal Agencies Target Universities Amid Antisemitism Allegations
The federal government recently revoked all grants and contracts with Columbia University, citing “illegal protests” and antisemitism on campus. The U.S. Department of Education’s Office for Civil Rights also sent letters to sixty universities, warning them of potential enforcement actions if they do not sufficiently protect Jewish students from harassment and discrimination.
Quick Hits
The Trump administration recently withdrew all contracts and grants with Columbia University in response to the anti-Israel or pro-Palestinian protests and allegations of harassment against Jewish students that occurred there in 2024.
The Department of Education sent letters to alert sixty other universities that they could face enforcement actions if they fail to protect Jewish students from harassment and discrimination.
The federal government has a new Joint Task Force to Combat Anti-Semitism.
On March 7, 2025, the U.S. Department of Justice (DOJ), U.S. Department of Health and Human Services (HHS), U.S. Department of Education, and the U.S. General Services Administration (GSA) announced they were canceling $400 million worth of federal grants and contracts with Columbia University in New York City. The agencies, as part of the new Joint Task Force to Combat Anti-Semitism, cited “illegal protests” and “the school’s continued inaction in the face of persistent harassment of Jewish students.”
The Trump administration and its Joint Task Force to Combat Antisemitism are targeting colleges that have seen pro-Palestinian or anti-Israel protests on their campuses, protests that the administration is interpreting to be antisemitic and ‘illegal’ according to the recent letters and the prior EO.”
Many universities, including Columbia, experienced protests by students and staff in 2023 and 2024, following the October 7, 2023, Hamas attack against Israel and the subsequent ongoing war between Israel and Hamas.
On January 29, 2025, President Donald Trump released an executive order titled “Additional Measures to Combat Anti-Semitism.” The order directed federal agencies to report on complaints “against or involving institutions of higher education alleging civil-rights violations related to or arising from post-October 7, 2023, campus anti-Semitism.” It ordered agencies to identify all civil and criminal authorities or actions within their jurisdiction that might be used to curb antisemitism.
On March 3, 2025, the U.S. Equal Employment Opportunity Commission (EEOC) issued a statement indicating a new policy priority to combat antisemitism in higher education. EEOC Acting Chair Andrea Lucas said, “[U]niversities are workplaces, too, and large-scale employers. In addition to Jewish professors on campus, universities employ Jewish staff who work a variety of jobs, all of whom have the right not to be discriminated against or harassed on the basis of religion, national origin, or race.”
On March 10, the Department of Education sent letters to sixty universities across the country, warning of potential enforcement actions if they don’t protect Jewish students from harassment and discrimination.
Title VII of the Civil Rights Act of 1964 prohibits workplace harassment and discrimination based on religion and national origin, which includes having Jewish ancestry.
Federal Law on Protests
Under the First Amendment of the U.S. Constitution, individuals have the right to peacefully protest in public spaces. Protesting violates the law if it becomes violent, incites immediate violence, or lacks a permit required for the space.
In 2024, although many protesters were peaceful, some campus protests led to violence and property damage, which resulted in arrests.
Next Steps
Universities and colleges may wish to inventory all federal contracts and grants they currently have to better understand their scope. They may wish to carefully document their policies and practices intended to prevent harassment and discrimination based on religion and national origin. They can update their employee handbooks and employee training to specifically prohibit anti-Jewish harassment and discrimination in the workplace.
The EEOC has released a poster that explains workers’ rights if they experience antisemitism at work.
Employment Law This Week-New DOL Leadership, NLRB Quorum, EEOC Enforcement Priorities [Video] [Podcast]
As featured in #WorkforceWednesday®: This week, we’re covering a change in leadership at the U.S. Department of Labor (DOL), the reinstatement of National Labor Relations Board (“NLRB” or “Board”) member Gwynne Wilcox (restoring a crucial quorum), and the Equal Employment Opportunity Commission’s (EEOC’s) focus on new enforcement priorities.
New Leadership at the DOL
Lori Chavez-DeRemer was sworn in as the U.S. Secretary of Labor on March 11, 2025, after receiving bipartisan support from the Senate. Secretary Chavez-DeRemer, a former congresswoman with strong backing from organized labor, is generally viewed as a centrist figure.
NLRB Quorum Restored—for Now
President Trump made waves when he fired NLRB member Gwynne Wilcox shortly after taking office. However, on March 6, a federal judge in the District of Columbia held that Wilcox was “illegally” fired and instructed the NLRB Chair to restore Wilcox’s access to the Board and allow her to serve out the remainder of her five-year term.
EEOC’s New Enforcement Priorities
While many had anticipated a reduction in EEOC enforcement under the new administration, a series of announcements indicate that the agency is instead shifting its priorities and stepping up investigations in new areas, such as anti-American bias, antisemitism, and binary sex and related rights.
Additionally, the EEOC has recently issued letters to 20 major law firms, raising concerns about their diversity and inclusion programs. The agency is investigating whether these programs may involve unlawful disparate treatment or classification based on race, sex, or other protected characteristics, in potential violation of Title VII of the Civil Rights Act of 1964. Employers should take note, as this development may signal a broader enforcement strategy.
New Trump 2.0 Travel Ban Expected to Target 40+ Countries: What You Need to Know
The Trump Administration is reportedly finalizing a new travel ban that will prohibit or severely limit the citizens of more than 40 countries from entering the United States.
On Jan. 20, 2025, President Donald Trump signed an executive order (EO) aimed at enhancing vetting procedures. This EO directed the secretary of state, the attorney general, the secretary of homeland security, and the director of national intelligence to jointly submit a recommendation to the president for suspending entry of migrants from “countries of particular concern” within 60 days. The recommendation is expected to be submitted to President Trump soon.
President Trump reportedly is considering implementing a new travel ban that could affect citizens from up to 43 countries. This proposed ban, often referred to as “Trump 2.0 Travel Ban,” is an expansion of the original travel ban from 2017, which primarily targeted seven Muslim-majority countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.
Historical Context
Trump’s 2017 travel ban (Executive Order 13769) targeted Muslim-majority nations and faced significant legal challenges before being upheld by the U.S. Supreme Court in 2018.
Current Developments
An internal administration memo reportedly suggests the inclusion of more countries in the new travel ban. The new ban appears to be a continuation of Trump’s immigration policies aimed at protecting national security and public safety.
While the White House has yet to publicly comment on the reported memo, the proposed new travel ban is expected to have significant implications for global mobility, international collaboration, and U.S. companies. Here are some of the main points:
Affected Countries
The proposed ban includes a tiered system with three categories: Red, Orange, and Yellow.
Citizens of countries listed in the “RED” category would be completely barred from entering the United States: Afghanistan, Cuba, Iran, Libya, North Korea, Somalia, Sudan, Syria, Venezuela, and Yemen.
Citizens of countries listed in the “ORANGE” category would face higher scrutiny and would be subjected to “Mandatory in-person interviews” in order to receive a visa: Eritrea, Haiti, Laos, Myanmar, and South Sudan.
Countries listed in the “YELLOW” category would be given 60 days to address concerns from the administration or risk being moved to the other categories: Angola, Antigua and Barbuda, Belarus, Benin, Bhutan, Burkina Faso, Cabo Verde, Cambodia, Cameroon, Chad, Democratic Republic of the Congo, Dominica, Equatorial Guinea, Gambia, Liberia, Malawi, Mauritania, Pakistan, Republic of the Congo, Saint Kitts and Nevis, Saint Lucia, Sao Tome and Principe, Sierra Leone, East Timor, Turkmenistan, and Vanuatu.
Impact on Employers and Employees
The ban is expected to affect many employers and their employees’ global mobility. Nationals of the restricted or banned countries who are outside the United States when the ban is announced may be unable to return, even with a valid visa stamp. Employees or business visitors from highly restricted countries will face rigorous visa application processes. Additionally, U.S. companies may need to restructure their global workforce, potentially losing international talent and facing higher business costs.
Legal and Implementation Challenges
The proposed ban includes different levels of restrictions, which appear to be calculated to deal with expected legal challenges or implementation challenges, including those related to the Equal Protection Clause of the 14th Amendment, due process, and discrimination, as seen with the 2017 travel ban.
As the administration finalizes the details, it is crucial to stay informed about the potential impacts and legal challenges that may arise.
DEI Executive Orders Are Back in Force with Court of Appeals Ruling
On Friday, March 14, 2025, ruling on a Government motion for a stay pending appeal, the United States Court of Appeals for the Fourth Circuit issued an Order staying a preliminary injunction that was issued in National Association of Diversity Officers in Higher Education (NADOHE) et al. v. Trump three weeks prior.
The unanimous ruling by a three-judge panel allows for full enforcement of two Executive Orders (EOs) regarding “Diversity, Equity, and Inclusion” (DEI), lifting the nationwide injunction against specific provisions that we explained here.
The Fourth Circuit panel issued its decision shortly after a District Court hearing on an emergency motion filed by the plaintiffs, who requested a status conference to review the U.S. Department of Justice’s alleged refusal to comply with the preliminary injunction. Four days earlier, on March 10, 2025, the District Court had issued a Clarified Preliminary Injunction along with a Memorandum Opinion, explaining that the February 21st ruling did not apply to the President, but applied to all federal executive branch agencies, departments, and commissions, and their heads, officers, agents, and subdivisions.
The Fourth Circuit panel unanimously agreed to stay the District of Maryland’s preliminary injunction based on the factors under Nken v. Holder, a 2009 Supreme Court decision that sets forth the standard for a U.S. Court of Appeals to apply in considering whether to grant a stay of a district court’s order while it assesses the order’s legality. The Order is remarkable, however, in that it was accompanied by concurring opinions written by all three panel judges.
Chief Judge Albert Diaz prefaced his commentary to state that he felt compelled to address “what seems to be (at least to some) a monster in America’s closet—[DEI].” Discussing the two EOs at issue in the lawsuit, Judge Diaz noted that “neither Order ever defines DEI or its component terms.” Judge Diaz further used the concurrence to voice support for DEI, writing that “despite the vitriol now being heaped on DEI, people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium.”
In a second concurring opinion, Judge Pamela Harris wrote that a stay was warranted because the government was persuasive in explaining that the EOs are of “distinctly limited scope.” However, Judge Harris signaled that a more thorough review of this “difficult case” will be forthcoming, and that the present “vote to grant the stay comes with a caveat”: Any agency enforcement actions that go beyond the EOs’ narrow scope “may well raise serious First Amendment and Due Process concerns, for the reasons cogently explained by the district court.” She also concurred with Judge Diaz’s positive comments regarding diversity, equity and inclusion.
Judge Allison Jones Rushing used her concurrence as an opportunity to raise potential defense arguments such as ripeness and standing, in addition to criticizing the scope of the preliminary injunction, stating that its breadth “should raise red flags: the district court purported to enjoin nondefendants from taking action against nonplaintiffs.” Judge Rushing also responded to the comments by Judge Diaz in support of DEI, writing about “the boundaries of our constitutional role and the imperative of judicial impartiality… A judge’s opinion that DEI programs ‘deserve praise, not opprobrium’ should play absolutely no part in deciding this case.”
On March 17, the Fourth Circuit Court of Appeals requested the parties to respond by March 24 to a proposed briefing schedule that would extend written filings into late May, if adopted. We will continue to monitor this case.
Staff Attorney Elizabeth A. Ledkovsky contributed to the preparation of this article.
Amendments to the Amparo Law
Para versión en español, haga clic aquí
On March 13, 2025, several amendments to the Amparo Law were published. These amendments intend to harmonize the Amparo Law with the recent modifications made to the structure and operation of the Federal Judicial System. The changes include:
Establishing that rulings in which amparo is granted against any law will only benefit the party who filed the respective lawsuit and cannot be extended to the rest of the persons. It is important that companies or individuals proceed in court against each authority or legislative act they consider unconstitutional.
Applying the new National Code of Civil and Family Procedures, which recently entered effect for the entire country, supplementarily to the Amparo Law.
Eliminating all references and attributions corresponding to the two Chambers of the Supreme Court as these were dissolved, and now the Supreme Court will only be integrated by a Plenum.
Eliminating references to the Federal Judiciary Board as the administrative and disciplinary officer of the Federal Judicial System replaced by the Judicial Administrative Body and the Court of Judicial Discipline.
Updating of the amounts owed in fines and eliminating references to the general minimum wage as a basis for calculation; Fines will now be calculated based on the Measurement and Updating Unit (Unidad de Medida y Actualización).
Using inclusive language in the wording of the various articles of the law.
Reforma a la Ley de Amparo
El 13 de marzo de 2025 se publicaron diversas reformas a la Ley de Amparo. Dichas reformas buscan armonizar esa ley con las recientes modificaciones que se hicieron a la estructura y funcionamiento del Poder Judicial de la Federación. Los cambios son, en esencia, los siguientes:
Se estableció expresamente que las sentencias en las que se otorga el amparo contra normas generales (leyes) solo beneficiarán a las personas que promovieron el juicio respectivo, por lo que el beneficio no se puede extender al resto de las personas, por lo tanto, es importante que las empresas o personas físicas acudan al juicio contra cada acto que consideren como inconstitucional.
Se hace referencia al nuevo Código Nacional de Procedimientos Civiles y Familiares mismo que recientemente entró en vigor para todo el País, lo anterior es relevante puesto que ahora dicho Código se aplicará supletoriamente a la Ley de Amparo.
Se eliminaron todas las referencias y atribuciones correspondientes a las dos Salas de la Suprema Corte puesto que éstas desaparecieron, siendo que ahora la Corte estará integrada solamente por un Pleno.
Se eliminan las referencias al Consejo de la Judicatura Federal como órgano administrativo y disciplinario del Poder Judicial ya que fue sustituido con el Órgano de Administración Judicial y el Tribunal de Disciplina Judicial.
Por lo que hace a las multas, éstas fueron actualizadas en montos y, además, se eliminaron las referencias al salario mínimo general como base para el cálculo, ahora dichas multas se calcularán con base en la Unidad de Medida y Actualización (UMA).
Se emplea un lenguaje inclusivo en la redacción de los diversos artículos de la ley.