DEI at Stake: Federal Groups Challenge Trump’s Efforts to Curb Inclusivity
The Trump administration is facing a new legal challenge to President Donald Trump’s executive orders (EOs) to eliminate diversity, equity, and inclusion (DEI) programs and initiatives after a group of diversity officers, professors, and restaurant worker advocates filed a lawsuit in a federal court in Maryland on February 3, 2025, alleging the orders are vague and unconstitutional.
Meanwhile, the U.S. Attorney General and the U.S. Office of Personnel Management (OPM) issued memoranda on February 5, 2025, to implement the orders and guide federal agencies on their scope.
Quick Hits
A coalition of DEI advocates has initiated a legal challenge against President Trump’s executive orders to eliminate diversity, equity, and inclusion programs, claiming they are unconstitutional and infringe on free speech rights.
The lawsuit argues that the vague language of the executive orders creates uncertainty that could lead to discriminatory enforcement against those promoting lawful DEI efforts.
The U.S. Office of Personnel Management has provided guidance to federal agencies on interpreting and implementing the recently signed executive orders regarding DEI and DEIA initiatives.
The developments raise questions for employers wishing to implement or continue implementing DEI programs to foster more inclusive workplaces.
DEI Executive Orders
In the first days of President Trump’s second term, he signed two key executive orders to eliminate all “illegal” DEI and diversity, equity, inclusion, and accessibility (DEIA) programs from the federal government and discourage the use of such programs in the private sector: EO 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” and EO 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” and President Trump’s rescission of many of Biden’s executive actions.
EO 14151 directs federal government agencies to end all illegal DEI and DEIA mandates, policies, programs, preferences, and activities in the federal government, including “equity action plans,” “equity action initiatives,” or other programs, grants, or contracts. The EO further eliminates DEI or DEIA performance requirements for employees, contractors, or grantees. The EO further seeks to eliminate “environmental justice” offices, positions, programs, policies, and services across the federal government.
EO 14173 terminates several prior executive actions to promote DEI in the federal government and orders the development of “appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.” The order argued that employers “have adopted and actively use dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called” DEI or DEIA programs that violate civil rights laws.
Specifically, the EO directs the attorney general to develop recommendations for using federal civil rights laws and other measures to deter DEI in the private sphere and directs federal agencies to “identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, and institutions of higher education with endowments over 1 billion dollars.”
DEI Legal Challenge
On February 3, 2025, a coalition of DEI advocates—the National Association of Diversity Officers in Higher Education, American Association of University Professors, Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore—filed a lawsuit in the U.S. District Court for the District of Maryland alleging the Trump EOs on DEI and DEIA are vague and unconstitutional.
The lawsuit alleged President Trump’s EOs are unconstitutional, threaten to put their members in the “crosshairs” of federal investigators, and will unlawfully strip federal funding from private entities that wish to continue with DEI efforts.
According to the lawsuit, President Trump’s policies leave their members “with an untenable choice: continue to promote their lawful diversity, equity, inclusion, and accessibility programs, or suppress their speech by ending the programs or policies that the President may consider ‘illegal DEI.’”
Specifically, the suit challenges EO 14173, alleging that it “is designed to, and does, chill free speech on matters of substantial political import,” which is “amplified by its vagueness.” The lawsuit alleges that “[t]he undefined terms leave potential targets with no anchor as to what speech or actions the order encompasses,” the suit alleges. “They also give executive branch officials like the Attorney General carte blanche authority to implement the order discriminatorily.”
The groups raise several constitutional claims, including those based on the First Amendment, the Due Process clause of the Fifth Amendment, and separation of powers, alleging that the orders are vague and suppress their free speech.
The suit names President Trump and several agency heads and acting heads as defendants and is seeking preliminary and permanent injunctions to block the implementation of EO 14151 and EO 14173.
Agency Guidance
On February 5, 2025, OPM Acting Director Charles Ezell issued a memorandum to the heads and acting heads of federal departments and agencies on eliminating DEI and DEIA programs and initiatives, including DEI or DEIA offices, employee resource groups (ERGs), and “special emphasis programs” within the agencies The memo shows how OPM interprets the DEIA orders, providing valuable insights into what the EOs may be interpreted to prohibit for federal contractors, federal money recipients, and even private employers.
The memo directs federal agencies to “eliminate DEIA offices, policies, programs, and practices (including policies, programs, and practices outside of any DEIA offices) that unlawfully discriminate in any employment action” based on “protected characteristics.”
The memo explained that “[u]nlawful discrimination related to DEI includes taking action motivated, in whole or in part, by protected characteristics” and that “a protected characteristic does not need to be the sole or exclusive reason for an agency’s action.” Specifically, the memo stated that unlawful DEI includes practices such as “diverse slate” policies that mandate the composition of hiring panels or candidate pools.
However, the restrictions are not meant to include offices or personnel required by law “to counsel employees allegedly subjected to discrimination, receive discrimination complaints, collect demographic data, and process accommodation,” but “[s]uch functions should be transferred” to other personnel and offices at the agency, the memo stated.
Similarly, the memo says that agencies should “eliminate Special Emphasis Programs that promote DEIA based on protected characteristics in any employment action,” including hiring, promotions, training, and internships or fellowships.
The memo further stated that the orders revoke the authority for ERGs and that agencies should eliminate them to the extent that they promote unlawful discrimination. However, agency heads “retain discretion” to allow programs such as affinity group lunches, mentorship programs, and gatherings “for social and cultural events” so long as such events are not restricted to members or attendance to those of a protected characteristic.
The memo also highlighted the administration’s position that the Biden administration had “conflated” DEI with “longstanding, legally-required” disability accessibility obligations. The memo told agencies to “rescind policies and practices contrary to the Civil Rights Act of 1964 and the Rehabilitation Act of 1973,” except to retain a minimum number of employees to carry out legally required disability and accessibility laws.
DOJ Memo
Also on February 5, 2025, newly confirmed U.S. Attorney General Pamela Bondi issued two memoranda implementing EO 14173. One memo directs the U.S. Department of Justice (DOJ) to review all “consent decrees, settlement agreements, litigation positions (including those set forth in amicus briefs), grants or similar funding mechanisms, procurements, internal policies and guidance, and contracting arrangements” that include “race- or sex-based preferences, diversity hiring targets, or preferential treatment based on DEI- or DEIA-related criteria.”
The memo further directs the DOJ to update its guidance to affirm “equal treatment under the law means avoiding identity-based considerations in employment, procurement, contracting, or other Department decisions” and to “narrow the use of ‘disparate impact’ theories that effectively require use of race- or sex-based preferences.”
The other memo states the DOJ’s Civil Rights Division “will investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector and in educational institutions that receive federal funds.” The memo further carries out the EO by directing the Civil Rights Division and the Office of Legal Policy to submit a report with recommendations to enforce federal civil rights laws to “encourage the private sector to end illegal discrimination and preferences, including policies relating to DEI and DEIA.”
However, both memos indicated in footnotes that they only apply to programs that “discriminate, exclude, or divide individuals based on race or sex” and “does not prohibit educational, cultural, or historical observances—such as Black History Month, International Holocaust Remembrance Day, or similar events—that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.”
Next Steps
The Trump administration has taken a hardline stance against DEI and DEIA generally, characterizing specific DEI/DEIA practices like race and gender preferences, including such DEI initiatives as diverse slates, as “illegal” or “unlawful discrimination.” These efforts come as the administration is further seeking to define sex as binary and immutable and limit the Supreme Court of the United States’ holding in Bostock v. Clayton County, Georgia, that firing an employee because of the employee’s sexual orientation or transgender status constitutes unlawful sex discrimination under Title VII of the Civil Rights Act of 1964. Further, federal lawmakers have reintroduced the “Dismantle DEI Act,” which seeks to codify President Trump’s DEI orders and prevent future administrations from reinstating similar policies.
The OPM memo confirms that federal agencies must eliminate DEI and DEIA programs and offices, which the administration is already dismantling. Further, those prohibitions extend beyond hiring and promotion practices that take DEIA into account to include softer implementation of DEI, such as through ERGs and Special Emphasis Programs. However, the memo acknowledges that agencies still need personnel to maintain compliance with antidiscrimination and harassment laws, as well as to fulfill accommodation obligations for employees with disabilities covered by applicable law.
At the same time, the DEI executive orders are facing a legal challenge and are likely to face more challenges that raise constitutional and other legal questions about the president’s authority to effectuate such changes, particularly the power to discourage and chill DEI with private employers without explicit statutory authorization and in contravention to existing federal law, such as Title VII. A ruling in favor of the plaintiffs could reinforce the importance of the lawfulness of DEI programs and protect them from future executive actions. Conversely, a ruling favoring the executive order could set a precedent for further restrictions on DEI efforts.
Employers may want to monitor these quickly evolving developments and consider reviewing their own DEI and DEIA practices regarding risk tolerances.
What You Need to Know to Prepare for an ICE Raid or Audit
On January 20, 2025, President Trump signed an executive order declaring a national emergency at the southern border of the United States and allowing for the use of federal funding for border security and the deployment of armed resources to the region. The following day, the Department of Homeland Security issued a directive rescinding policies that limited enforcement in sensitive locations such as churches, schools and hospitals.
Since this directive was implemented, employers should be prepared to handle ICE immigration enforcement actions or inspections at these locations as ICE raids, which target undocumented employees are not announced in advance. Businesses, schools, employees, and students must be ready and well prepared to address immigration actions by ICE during the foreseeable future.
Preparing requires designating a key representative, such as HR, legal counsel or a senior administrator, to interact with ICE officers and training front-line staff to direct officers to the representative. Employers should be prepared with written response plans and should be aware of their rights—and the rights of their employees.
Attorney General Bondi’s Day One Orders for DOJ
Shortly after her confirmation, and just after her swearing-in by Associate Justice Clarence Thomas, U.S. Attorney General Pamela Bondi issued fourteen memoranda that seek to reform the Department of Justice by rescinding prior guidance, issuing new guidance, and establishing new priorities for the nation’s chief law enforcement and prosecuting agency. We examine below the actions taken by Attorney General Bondi.
“Elimination of Diversity, Equity, and Inclusion” (DEI): Two of the memos focus on the elimination of prior Diversity Equity and Inclusion (DEI) efforts at the Department and in the private sector. These directives stem from President Trump’s executive order on January 21, 2025 concerning “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”. The first memo requires “[a]ll Department materials that encouraged or permitted race- or sex-based preferences as a method of compliance with federal civil rights laws” to be rescinded and replaced with new guidance. The second memo directs theDOJ’s Civil Rights Division to “investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector and in educational institutions that receive federal funds.” For a full summary of the DOJ’s focus on DEI, go to the blog post by our colleagues in Labor and Employment.
Immigration. This memo directs the DOJ to withhold federal funding from, and pursue enforcement actions against, sanctuary cities. The memo cites 8 U.S.C. § 1373which provides that state or location jurisdictions “may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” The memo warns that any sanctuary cities that violate this statute will receive a cut in federal funding cuts.
Elimination of Cartels. This memo directs DOJ personnel to focus its efforts to eliminate cartels and transnational criminal organizations (TCOs). The memo identifies various enforcement mechanisms and resources that may be used in carrying out the directive. Notably, the memo calls for the Department to shift the focus of its prosecutions under the Foreign Corrupt Practices Act (FCPA) to “the criminal operations of Cartels and TCO”. Additionally, the memo removes the requirement that the Fraud Section of the Criminal Division handle all investigations and prosecutions under the FCPA, now permitting any U.S. Attorney’s Office to initiate charges with only 24 hours of advance notice to Main Justice required. It is unclear whether, and to what degree, DOJ will continue its pending corporate investigations and prosecutions and/ or initiate new ones.
Joint Task Force October 7. This memo focuses on the creation of the Joint Tasks Force October 7 to “seek[] justice for victims of the October 7, 2023 terrorist attack in Israel” and address ongoing antisemitic threats in the United States.
Charging, Pleas Negotiations, Etc. This memo outlines general policy regarding charging, plea negotiations, and sentencing for prosecutors. It lays out the Department’s criminal enforcement including immigration enforcement; human trafficking and smuggling; transnational organized crime, cartels, and gangs; and protection of law enforcement personnel. The memo also disbands the Foreign Influence Task Force and the National Security Division’s Corporate Enforcement Unit. [I think we should also note that the guidance is now to charge the most serious, readily provable crime, with the highest “recommended” sentence under the guidelines. Quote the language.]
“Zealous” Advocacy on Behalf of the U.S. This memo directs DOJ to “zealously defend the interest of the United States.” The memo emphasizes the responsibilities DOJ attorneys have to enforce the laws of the United States, but also highlights their responsibility to “vigorously defend[] presidential policies and actions against legal challenges on behalf of the United States.” This memo suggests discipline for DOJ attorneys that decline to sign briefs or appear in court on personal grounds or “otherwise delay or impede the Department’s mission.”
Recession of Biden Administration Guidance. Three of the memos roll back specific directives made by former Attorney General Merrick Garland who served in the Biden Administration, including those that pertained to the interpretation of guidance documents, third-party settlements to non-governmental, third-party organizations, and the prioritization of environmental prosecutions.
Death Penalty. Two memos focus on the death penalty—one memo directs U.S. Attorney’s Offices “to assist local prosecutors in pursuing death sentences under state law against the 37 commuted inmates” who’s sentence former President Joe Biden previously commuted, while the other memo revives the federal death penalty by lifting the moratorium on federal executions and provides for the re-review of pending cases potentially eligible for death.
DOJ Employees Back to the Office. This memo directs DOJ employees to return to work in-person by February 24, 2025 and reinforces President Trump’s January 20, 2025 Presidential Memorandum on the same matter.
Weaponization Work Group. This memo targets “abuses of the criminal justice process, coercive behavior, and other forms of misconduct.” The directive addresses Trump’s January 20 Executive Order concerning “Ending the Weaponization of The Federal Government” by establishing a “Weaponization Work Group,” tasked with reviewing criminal and civil enforcement over the last 4 years, and reporting to the White House “instances where a department’s or agency’s conduct appears to have been designed to achieve political objectives or other improper aims rather than pursuing justice or legitimate governmental objectives.”
Trump Administration Provides Some Guidance on DEI Programs
Following up on the Trump Administration’s series of executive orders and statements regarding diversity, equity, inclusion, and accessibility (DEI or DEIA) programs, on February 5, 2025, both the Office of Personnel Management (OPM) and the United States Attorney General Office issued memoranda reflecting additional guidance as to what may constitute an “illegal” DEI or DEIA program and directing enforcement action.
Specifically, the OPM memo instructs federal agencies to terminate “all illegal DEIA initiatives” and requires the elimination of DEIA offices, policies, and practices. It explains the administration’s view that any DEI program that encourages action based on a protected characteristic is illegal, even if it is not the sole reason for the action. The memo clarifies that it is not targeting agency departments that exist to counsel employees allegedly subject to discrimination or receive and respond to such discrimination complaints (such as the Equal Employment Opportunity Commission (EEOC)).
The memo further addresses Employee Resource Groups (ERG) and states that federal agencies must eliminate any ERG that promotes unlawful DEIA initiatives or otherwise involves programs designed to retain/train/develop their employees based on protected characteristics. It states that affinity and mentor programs are potentially permissible if attendance at and participation in such programs are not restricted by protected characteristics and participants are not segregated by such protected characteristics during events.
While the OPM memo only applies to federal employees, its contents offer insight as to how the administration views and seeks to define “illegal” DEIA initiatives. At its base, it is taking any action, promoting any action, or permitting any action (including participation or the denial of participation) that is premised upon (even partially) a protected characteristic.
The Attorney General memo announces that the Department of Justice will investigate, eliminate and penalize “illegal” DEI and DEIA programs, preferences, mandates, policies, and activities in the private sector and in educational institutions that receive federal funds.
The memo instructs the Civil Rights Division and the Office of Legal Policy to jointly submit a report to the Associate Attorney General by March 1, 2025, containing recommendations for enforcing federal civil rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination, including DEI and DEIA programs. The report is to include a list of the companies that are the most “egregious” offenders as well as a plan to enforce the requirement to eliminate such programs.
In a clarifying footnote, the memo states that the aim is to end illegal discrimination stemming from diversity initiatives and not to eliminate observances based on history (using Black History Month and Holocaust Remembrance Day as examples of such observances).
Since January 20, 2025, according to various news reports, private sector companies’ reactions have encompassed a wide spectrum, ranging from withdrawal of DEIA programs, doubling down and re-committing to such initiatives, and a more middle-of-the-road approach aimed at reviewing and modifying existing programs and initiatives.
We will continue to monitor what consequences such decisions may have. We again recommend that employers consult DEI experts and labor and employment counsel to assess whether their DEI/DEIA policies and practices may be construed to be out of compliance with existing federal antidiscrimination laws under a Trump-era lens and what changes (if any) in their policies and practices are necessary to ensure compliance or mitigate risk.
It’s That Time of Year Again: Using OSHA’s Injury Tracking Application to Submit OSHA Forms 300, 300A, and 301
Pursuant to the Occupational Safety and Health Administration’s (OSHA) electronic reporting regulation, covered employers must submit their OSHA injury and illness records (OSHA Forms 300, 300A, and 301) using OSHA’s electronic Injury Tracking Application by March 2, 2025.
With the reporting deadline quickly approaching, employers should determine whether they must submit an electronic report, and if so, how to navigate the ITA system.
What is OSHA’s Injury Tracking Application?
Launched in January 2024, OSHA’s Injury Tracking Application (ITA) is on online portal that allows covered employers to submit their OSHA injury and illness records (OSHA Forms 300, 300A, and 301) electronically each year.
New ITA users will be required to create an account and complete an establishment profile before submitting the required records. Employers who reported via the ITA last year may use their existing account and establishment profile. However, returning employers should be sure to update their establishment profile to reflect any relevant changes over the reporting year. OSHA’s ITA User Guide and FAQ page provide helpful information about creating and maintaining an ITA account as well as navigating the ITA portal.
Must My Establishment Submit an Electronic Report?
Only certain establishments are required to submit electronic reports via the ITA each year. Reporting requirements differ depending on employer size and industry, as detailed below:
You must submit OSHA Form 300A via the ITA if:
Your establishment has 250 or more employees and is in an industry not listed in Appendix A to Subpart B of OSHA’s recordkeeping regulation; OR
Your establishment has 20–249 employees and is in an industry listed in Appendix A to Subpart E of OSHA’s recordkeeping regulation.
You must submit OSHA Forms 300A, 300, and 301 via the ITA if:
Your establishment has 100 or more employees and is in an industry listed in Appendix B to Subpart E of OSHA’s recordkeeping regulation.
OSHA does not notify employers as to whether they must electronically submit their injury and illness records using the ITA. To ensure OSHA compliance, employers must independently determine whether they are subject to the electronic reporting requirements. Luckily, OSHA recently created a helpful tool to assist employers in determining their electronic reporting requirements.
If My Establishment Is Exempt From Electronic Reporting, Do I Still Have to Complete OSHA Forms 300, 300A, and 301?
Even if you determine that your establishment is not required to submit electronic reports via the ITA, you must still keep a record of serious work-related injuries and illnesses using OSHA Forms 300, 300A, and 301 (or equivalent forms), unless your establishment is considered exempt. Employers who are uncertain about whether they must submit an electronic report this year should contact counsel for advice and clarification.
Vax On: Fourth Circuit Reinstates Plaintiff’s Religious Bias Suit in COVID Vaccine Mandate Case
On January 7, the United States Court of Appeals for the Fourth Circuit reversed and remanded a district court’s dismissal of a plaintiff’s Title VII religious bias suit—holding the case was sufficient to survive a motion to dismiss at the pleading stage. The matter, Barnett v. Inova Health Care Services, provides key insights and reminders for employers attempting to balance workplace policies with employees’ religious beliefs.
The matter concerned Inova’s COVID-19 vaccine policy. Inova’s policy mandated all employees receive the COVID-19 vaccine unless they had a religious or medical exemption. Barnett, the plaintiff, was a registered nurse and devout Christian. Inova first rolled out its COVID vaccine policy in 2021. At that time, Barnett requested a medical exemption based on lactation concerns but also objected on religious grounds. Inova granted Barnett’s exemption request. According to Barnett, later that year Inova revised its policy and required all employees with an existing vaccine exemption reapply under the new criteria. Barnett claims Inova then required all employees requesting a religious exception complete a questionnaire about their particular religious beliefs applicable to the COVID vaccine. The questionnaire—which Barnett attached to her lawsuit—requested the following information:
1. Describe the nature of your objection to the vaccine.
2. How would complying with the mandate burden your religious exercise?
3. How long have you held the religious belief forming the basis of your objection?
4. As an adult have you received any other vaccines?
5. If you do not religiously object to other vaccines, why do you object to the COVID vaccine?
6. Identify other medications/products you avoid because of your religious beliefs.
When completing the questionnaire, Barnett sought only a religious exemption. Therein, Barnett explained she was a devout Christian and made “life decisions after thoughtful prayer and Biblical guidance.” Barnett further claimed it “would be sinful for her” to take the vaccination having been “instructed by God” to abstain from it. Additionally, Barnett alleged that receiving the vaccine would be “sinning against her body.” Barnett’s stance on the vaccine did not arise directly from scripture but, instead, was “based on her study and understanding of the Bible and personally directed by God.” Inova ultimately denied Barnett’s exemption request—and discharged Barnett after briefly placing her on administrative leave.
According to Barnett, Inova effectively picked “winners and losers” from among those employees requesting an exemption. More particularly, Barnett claimed that Inova chose to exempt employees from more “prominent” or “conventional” religions, while denying Barnett’s request. Barnett claimed to practice a non-denominational form of Christianity.
In her lawsuit, Barnett brought one count of failure to accommodate and two counts of disparate treatment pursuant to Title VII of the Civil Rights Act. Barnett also brought overlapping state-law claims under the Virginia Human Rights Act.
Inova moved to dismiss Barnett’s complaint pursuant to Federal Rule 12 on the basis it failed to state a viable claim for relief. Primarily, Inova argued that Barnett’s concerns about the COVID vaccine were not sincerely religious in nature and, rather, amounted to personal preferences or fears. Inova claimed that Barnett’s reliance on “prayerful consideration” to make her vaccination decision—instead of scriptural authority—meant her choice was “untethered to a particular religious belief.” The district court sided with Inova and dismissed Barnett’s complaint on the pleadings. Barnett appealed that decision to the Fourth Circuit.
On appeal, the Fourth Circuit reversed and remanded the district court’s decision; wholly reinstating Barnett’s lawsuit. In its opinion, the Court of Appeals noted that to qualify for Title VII protection, a religious discrimination plaintiff must show her professed belief is (1) sincerely held and (2) religious in nature. The Fourth Circuit found Barnett met the first prong by alleging to be “a sincere follower of the Christian faith” who made “all life decisions” after “prayer and Biblical guidance.” Sincerity, the Court of Appeals noted, is “almost exclusively a credibility assessment” that can “rarely be determined on summary judgment, let alone a motion to dismiss.”
The Fourth Circuit also found Barnett’s complaint adequately demonstrated her beliefs were religious. In her lawsuit, Barnett alleged that getting the COVID vaccine would be “sinful…against her body”, defy instructions “by God”, and otherwise go against her “study and understanding of the Bible.” According to the Fourth Circuit, these allegations were “sufficient to show that Barnett’s belief is an essential part of a religious faith” and “plausibly connected” to her refusal to receive the COVID vaccine.
The Barnett opinion offers some important lessons. First, Rule 12 motions to dismiss are difficult to win, give plaintiffs a low bar to clear, and should be filed only when strategically appropriate; not as a matter of course. To survive a Rule 12 motion, a complaint need only plead facts that—taken as true—plausibly support a claim. In the context of discrimination suits, the Fourth Circuit noted that allegations offering a “reasonable inference” of discriminatory intent are sufficient. A plaintiff also does not need to establish a prima facie case to survive a Rule 12 motion. As the Fourth Circuit remarked, that is an “evidentiary standard, not a pleading requirement”.
Second, Barnett serves as a reminder that a religious belief need not be rooted in scriptural authority or dogma to form a viable discrimination claim. Similarly, a plaintiff’s theological interpretations need not be shared by their church’s leadership—or deemed valid by their employer—to qualify as religious in nature.
Third, at the pleading stage especially, courts give a wide berth to a plaintiff’s claim that their religious belief is “sincerely held.” As the Barnett court noted, whether a plaintiff’s religious belief is “sincere” is a credibility assessment that can rarely—if ever—be determined on the pleadings.
Fourth and finally, Barnett serves as a reminder that employers should consult experienced counsel before implementing any policies, procedures, or written questionnaires designed to evaluate whether employees may qualify for an exemption from vaccines or other workplace mandates. The plaintiff in Barnett attached Inova’s questionnaire as an exhibit to the publicly-filed complaint. Any business implementing these or other policies should seek advice from well-qualified outside counsel.
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Attorney General Pam Bondi’s Ending Illegal DEI and DEIA Discrimination and Preferences Memo
On February 5, 2025, Attorney General Pam Bondi disseminated an internal memo within the Department of Justice (DOJ). The memo, Ending Illegal DEI and DEIA Discrimination and Preferences, explained that the DOJ’s Civil Rights Division will “investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector and in educational institutions that receive federal funds.”
The memo is intended to only encompass programs, initiatives, or policies that “discriminate, exclude, or divide individuals based on race or sex.” The memo makes clear it does not prohibit “educational, cultural, or historical observances . . . that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion of discrimination,” such as Black History Month, International Holocaust Remembrance Day, or similar events.
Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, signed by President Donald Trump on January 21, 2025, requires the Attorney General and the Director of the Office of Management and Budget to submit a joint report that includes recommendations to enforce federal civil-rights laws and “other appropriate measures to encourage the private sector to end illegal discrimination and preferences” within 120 days.
Consistent with Executive Order 14173, the DOJ memo requires the Civil Rights Division and Office of Legal Policy to submit a report discussing such recommendations and “other appropriate measures” by March 1, 2025.
The report to the Associate Attorney General must address a number of items, including a list of “the most egregious and discriminatory DEI and DEIA practitioners in each sector of concern” within the DOJ’s jurisdiction. The report must also include a plan identifying specific measures “to deter the use of DEI and DEIA programs or principles that constitute illegal discrimination or preferences, including proposals for criminal investigations and for up to nine potential civil compliance investigations of entities that meet” criteria in Executive Order 14173, which include publicly traded corporations, large non-profit corporations or associations, foundations with assets of $500 million or more, state and local bar and medical associations, and institutions of higher education with endowments over $1 billion. In addition, the Civil Rights Division and Office of Legal Policy must also recommend other approaches “to end illegal DEI and DEIA discrimination and preferences and to comply with all federal civil-rights laws” within the private sector.
Finally, the memo notes that the DOJ, working alongside the Department of Education, plans to issue directions, and the Civil Rights Division would pursue actions, “regarding the measures and practices required to comply with” the Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard, which held that educational agencies, colleges, and universities that received federal funds could not “treat some students worse than others in part because of race.”
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To Seek a Return to the Office, or Not to Seek? Increasingly, That is the Question (UK)
It is clear from the press in recent weeks that there has been a widespread shift in terms of how much homeworking employers are willing to allow and indeed, in some cases, an almost complete volte face – with numerous house-hold name employers reportedly mandating their staff to work four or five days in the office. Towards the end of last week, the BBC reported that Lord Sugar is telling workers to get their (if you’ll pardon the phrase) “bums back to the office”. Indeed, KPMG’s latest CEO Outlook at the end of 2024 revealed that
“CEOs are hardening their stance on returning to pre-pandemic ways of working, with 83 percent expecting a full return to the office within the next three years – a notable increase from 64 percent in 2023”.
The reasons for the expected shift to increased time in the office are fairly obvious and nothing really new – from facilitating better collaboration across teams to ensuring juniors receive adequate supervision, reversing the potential for Friday to become a de facto third weekend day, team spirit, collegiality, blah blah, to name some of the key ones. All very worthy in principle, of course, but we are still left paddling about in the chasm between returns which are expected in the sense of “anticipated” on the one hand and those which are expected in the sense of “required” on the other.
Having understandably let that question slide to some extent during the pandemic and its aftermath, employers must now try to fit their facts into the flexible working regime, the key parts of which (in particular, the legitimate reasons for saying no to homeworking) have remained unchanged throughout. Navigating this has always been a tricky issue for employers but has been made far more so by the pandemic. Understandably there is often resistance from staff. They may have moved out of easy commuting distance of their workplace or made childcare arrangements which will prove more challenging if they have to commute more often, sometimes in reliance on warm assurances from employers keen to ride the mood of the moment that they were happy for staff to do their own thing so long as the job got done. In protesting, many employees argue that during the pandemic they managed to work entirely remotely thanks to swift technological advances, often with productivity gains and certainly without employer complaint – so surely employers cannot now rely on any arguments to do with adverse impact on quality/quantity of work to refuse homeworking now? Although the burden of proof has remained neutral at law, the practical reality is that the argument has moved from the employee having to show that the WFH will work to the employer having to show that it won’t, or perhaps more accurately for these purposes, that it hasn’t.
As KPMG acknowledges in its report, “this year’s findings highlight a widening gap between the expectations of CEOs and their employees… today’s employees don’t just desire, but expect a more agile, flexible working environment and a better work-life balance”. Let us also not forget that studies have shown material gains from an inclusivity perspective due to the increased availability of remote working, particularly for working mothers and those with disabilities who might otherwise have had to leave employment, or not have been able to join in the first place.
Throw into the mix that the basis on which employees have continued to work from home post-pandemic may not always have been properly agreed upon, let alone documented, plus recent changes to the law on the right to request flexible working from Day One and it is understandable that many employers are grappling with next steps.
To assist employers scratching their heads over this thorny issue, we have set out below our Top Five things to think about when considering whether and how to encourage/mandate an increased/full return to the office:
Check the contractual basis on which staff are currently working from home, as this will determine any process you have to follow if you decide to bring them back in and also help you to assess how feasible that might be.
For example, if employees’ contracts allow for homeworking or have been varied formally or by implication to allow this then, absent any reserved right within that contract for the company to make changes to that arrangement, you would need to consult with staff about any proposed change to their terms and conditions of employment.
By contrast, if a company had introduced a remote working policy in which the business expressly reserves the right to make changes depending on operational needs, making changes to arrangements might be more straightforward, at least as a matter of pure contract. Whatever the contractual rights and wrongs, however, you are still going to want to consult, not least because your staff may not agree that these arrangements aren’t contractual anyway.
One option might be to announce the change in the hope that most people will agree and then deal with any employees who are not happy/have a different contractual arrangement on an individual basis. The fact that an increasing number of other companies have made announcements about this will perhaps help, as it will not feel totally out of step with the zeitgeist, but there will almost certainly be a group of individuals who will need to be dealt with on an individual basis due to their specific circumstances. But beware doing special deals with objectors – that will just get squarely up the nose of those who did the Right Thing and bit the bullet from the start.
Be careful about pushing through the change via dismissal and re-engagement.
There has been much less-than-impartial press coverage regarding “unscrupulous” employers using “fire and re-hire” tactics (i.e. terminating the employment of employees who refuse to agree to changes to terms and conditions of employment and immediately offering them re-employment on the new terms) to force through changes to terms and conditions. The fact that it is currently entirely lawful seems to have escaped many of the commentators.
The previous government introduced a new Statutory Code of Practice on Dismissal and Re-engagement which sets out the steps employers should follow where they are unable to agree changes to terms and conditions with their employees, and they opt to go down the dismissal and reengagement route. As with many other Codes, an employer’s failure to comply does not in itself give employees or their representatives any basis for a standalone claim, but such a failure will be taken into account if an employee brings one of the claims set out in Schedule A2 of the Trade Union and Labour Relations (Consolidation) Act 1992, e.g. unfair dismissal. Any unreasonable failure to comply with the Code could result in an uplift (or reduction) in any compensation awarded by up to 25%. From 20 January, Tribunals are also able to apply any uplift (or reduction) to any protective award made (where the employer has been found not to have complied with its collective consultation obligations). Although claims for a failure to comply with these obligations are not common, the potential costs of non-compliance for the employer can be significant, with awards of up to 90 days’ pay per affected employee. Following the changes in January, we could be talking about even more significant sums of money, depending on the number of affected employees and the scale of the non-compliance. Employers should therefore ensure they comply with this Code if they end up going down the dismissal and re-engagement route and the collective consultation rules are triggered.
The Labour government is proposing to make further reforms in this area under the Employment Rights Bill.
In any event, there may be adverse reputational consequences if this approach is taken, so these should be carefully weighed up (see “Non-legal risks” below).
As a result, the breach of contract implicit in mandating a return is best left as a last resort unless business critical, with initial focus on encouraging – wielding a carrot rather than a stick is best.
Be prepared for an increase in flexible working requests.
Even if the company is able to impose the new policy as a matter of contract, it is very likely that it will receive more or less overnight an increase in the number of flexible working requests from staff asking to be allowed to work wholly or mainly from home.
The law changed in April last year to widen the right to request flexible working (including by making it a Day One right, shortening the employer’s time to respond and removing the obligation for employees to give any thought to the potential impact on the employer and how this might be dealt with).
Any such request by an employee to work fully or partially from home will need to be duly considered by the company in accordance with the statutory flexible working regime, on a case-by-case basis and on its own individual merits. It will not be permissible for the employer to reject such requests as a matter of course on the basis of its general WFH policy or unevidenced assertions of intangible or anticipated prejudice to quality or output, nor on reliance of generic pronouncements of business leaders at home and abroad to the effect that WFH “isn’t proper work” or that homeworkers are lazy, lack commitment, application, ambition or any of the other old chestnuts which are trotted out periodically to justify imposing attendance obligations which the facts don’t necessarily support.
Watch out for discrimination
It is entirely possible to refuse a flexible working request lawfully (remember the statutory right is a right to request, not a right to have) and relatively hard for an employee to bring a successful claim, provided the company has followed the process, considered the application on its individual merits and established a sound business reason for saying no.
Potentially, the bigger risk is that an individual might bring a claim of indirect discrimination. For example, a policy bringing everyone back to the office may have an adverse impact on women who are arguably more likely to have childcare obligations.
This leads to two main issues for employers. First, defending a discrimination claim is harder than defending a flexible working claim, as the burden of proof falls on the employer to show that there was not discrimination, rather than requiring the employee to prove that there was. Second, the employer may need to show that any such policy can be objectively justified – so if there is a non-discriminatory way of achieving the same aim, the employer would need to take that approach instead.
In either case, the sensible employer will amass as much evidence as it can that fully or largely remote working has been or will be (as a minimum) sub-optimal. So far as practicable, this should be based on concrete examples of where things have gone wrong in that or any similar case. Ideally, this should have been picked up at the time, but even if it was not, it can still be relied upon. Vague waffling about lack of team spirit and collegiality will not be enough here, any more than the preservation of stereotypes of homeworkers lacking care or commitment.
Be aware of the non-legal risks
Those risks mainly involve issues of reputation, recruitment, retention, motivation and productivity. There is no doubt that following the pandemic many employees have embraced home/hybrid working and now expect this to be part of a meaningful work-life balance. Where you sit on this issue as a business will depend upon many factors – for example, if you are struggling to recruit the right staff, allowing flexibility/remote working may well be an incentive to attract talent. By contrast, if your business is in cost-cutting mode, you may get fewer protestations from employees if you mandate a return to the office, as they may believe that being present/visible might make them less likely to be made redundant. (Note: the rights and wrongs of this could form the basis of a blog on their own, but for now, this might be the practical reality of how any mandate is received).
Against this, however, there are clearly a number of benefits that come with people working together in the office, including improved culture, increased collaboration, better productivity (the productivity argument can go both ways) and enhancing the corporate “glue”. The tragedy of this for employers is that these factors are all completely obvious and yet, at the same time, very hard to prove. As above, the onus is on the employer to address individual applications on their own facts, and so it will always be desirable to start with whether the WFH arrangement sought will work for that employee, and not whether there are intangible and generic reasons which perhaps do not apply to him/her at all.
Ultimately therefore, companies need to balance their own specific operational/business requirements and the potential benefits of increased office working against the potential disadvantages, to determine what is commercially best for them. This will differ from business to business and sector to sector.
It would also be worth having an eye on what others are doing in the sector.
The final outcome might involve a combination of both mandating attendance and incentivising.
Calling All Apprentices: National Guidelines for Apprenticeship Standards Approved by DOL for Renewable Energy Projects
Nearly two and a half years after the Inflation Reduction Act of 2022 (IRA) became law, developers and contractors continue to adjust to the new normal for renewable energy projects: compliance with prevailing wage and apprenticeship requirements. As most renewable industry participants are aware, under the IRA, compliance with these requirements is necessary to realize the full value of federal investment tax credits, production tax credits, and commercial buildings’ energy efficiency tax deductions.
On January 13, 2025, the U.S. Department of Labor certified National Guidelines for Apprenticeship Standards, developed jointly by the Interstate Renewable Energy Council (IREC) and the Solar Energy Industries Association (SEIA). The first set of guidelines are for the occupation of construction craft laborer, but guidelines for other occupations commonly utilized by solar companies are under development.
The new guidelines establish a framework for developing registered apprenticeship programs that will have common standards to ensure that apprentices across the country receive a baseline of similar education and training, while also providing space for any specific training required by a geographic area. They are presented as “a blueprint for developing an apprenticeship program” and focus on the following eight components:
The Apprenticeship Approach – utilizes a time-based approach (as opposed to competency-based or hybrid) focusing on the apprentice’s skill acquisition through completion of on-the-job learning and related instruction tasks and corresponding hour requirements.
Term of Apprenticeship – establishes the duration — number of hours of on-the-job learning (2000 hours annually; 4000 hours total) and related instruction (144 hours annually; 300 hours total) — that must be completed by an apprentice to complete the program.
Ratio of Apprentices to Journey workers – uses a 1:1 apprentice-to-journey worker ratio (this may vary by project location and state law).
Apprentice Wage Schedule – provides a general template for wage increases at defined intervals as apprentices progress through the program and gain knowledge/skills (to be filled in by a registered apprenticeship program sponsor).
Probationary Period – notes that programs should require a probationary period that should not exceed the lesser of one year or 25% of the apprenticeship term (term to be filled in by a registered apprenticeship program sponsor).
Selection Procedures – notes that program sponsors have flexibility to determine selection procedures so long as they are consistent with general nondiscrimination obligations and federal Uniform Guidelines on Employee Selection Procedures (i.e., no discrimination based on race, color, religion, national origin, sex, sexual orientation, genetic information, disability or age, and compliance with equal opportunity requirements of Title 29 of the CFR, part 30).
Work Process Schedule for On-the-Job Learning – outlines a work process schedule for on-the-job learning tasks to be completed by apprentices to demonstrate proficiency that must be satisfied before a completion certificate can be awarded. For construction craft laborers, supervised work experience is devoted to safety and work habits (400 hours), use and care of tools/equipment (600 hours), construction activities (2,000 hours), preparation and quality assurance (600 hours), and code/drawing review and utilization (400 hours).
Related Instruction – describes coursework on theoretical and technical subjects to be completed by apprentices (minimum of 175 hours of core skill training and 125 hours of elective coursework). Solar-specific instruction in the elective section includes 20 hours for introduction to solar construction, 10 hours for solar site assessment study, 40 hours on solar design and installation, eight hours on utility vegetation management, four hours on erosion control, 20 hours on renewable energy systems, and eight hours on battery basics. It provides for other educational methods, including classroom/online/self-study courses for apprentices (each program must include at least 144 hours of related instruction annually).
Overall, the National Guidelines for Apprenticeship Standards provide additional, practical guidance and support for contractors committed to creating high-quality apprenticeship programs compliant with IRA requirements.
Major Changes in Affirmative Action Requirements for Federal Contractors
On January 21, President Trump signed an executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the Order), revoking Executive Order 11246, the long-standing order that required federal contractors to engage in affirmative action, including by annually developing Affirmative Action Plans (AAP’s) concerning women and minorities. The Order further mandates that the Office of Federal Contract Compliance (OFCCP) immediately cease promoting diversity, investigating federal contractors for affirmative action compliance, and allowing or encouraging federal contractors to engage in workforce balancing.
Below are several key points that manufacturers who are federal contractors need to know:
Federal contractors are no longer required to create an AAP about women and minorities. However, this Order does not impact the affirmative action obligations stemming from the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) for protected veterans or the obligations under Section 503 of the Rehabilitation Act of 1973 for individuals with disabilities. Further, this Order does not absolve contractors of any obligations they may have under state law if they are also state contractors or any other applicable legal obligations.
The Order prohibits federal contractors from considering “race, color, sex, sexual preference, religion, or national origin in their employment, procurement or contracting practices in ways that violate the [n]ation’s civil rights laws.” Additionally, the Order states that federal contract recipients will be required to certify that they do not operate diversity, equity, and inclusion (DEI) programs “that violate any applicable Federal anti-discrimination laws.” Importantly, this does not wholly prohibit employers from having DEI-related policies and practices; rather, it prohibits only those that could be found to violate anti-discrimination laws, such as race-based quotas.
The Order provides contractors with a 90-day grace period during which they may continue to comply with the original regulations. Contractors should use that time to audit their policies and practices under attorney-client privilege to evaluate compliance with this order.
In addition, manufacturers that are not federal contractors may also be impacted by this Order. The Order scrutinizes DEI efforts in the private sector and requires federal agencies to, among other things, report a list of large corporations and organizations that should be subject to civil compliance investigations based on unlawful DEI programs. Accordingly, manufacturers may also want to consult with legal counsel about their DEI initiatives to ensure they are lawful.
New York’s Paid Prenatal Leave: What NYC Employers Need to Know About the DCWP’s Proposed Amendments to the ESSTA Rules
On January 6, 2025, in the wake of the issuance of guidance by the New York State Department of Labor (NYSDOL) about the New York State Paid Prenatal Leave Law, which came into effect on January 1, 2025, the New York City Department of Consumer and Worker Protection (DCWP) proposed amendments to the rules related to New York City’s Earned Safe and Sick Time Act (ESSTA) to incorporate the state’s paid prenatal leave law requirements.
Quick Hits
New York State’s paid prenatal leave law, which went into effect on January 1, 2025, requires that employers provide employees twenty hours of paid leave per year to receive prenatal care.
The NYSDOL recently released new guidance in the form of answers to frequently asked questions (FAQs) to assist employers in understanding and implementing the new requirements under the Paid Prenatal Leave Law.
In part, the DCWP’s proposed amended rules are consistent with the paid prenatal leave law, but if adopted, certain provisions would impose additional requirements that exceed what is otherwise required under the state law.
Overview of the Proposed Rules
Notable provisions of the proposed rules include sections:
requiring employers to maintain and distribute a written policy addressing paid prenatal leave that meets or exceeds all of the requirements of the ESSTA;
authorizing employers to require reasonable written documentation that the use of paid prenatal leave was for purposes authorized by law if the use of such leave results in an absence of more than three consecutive days, and as with the ESSTA, specifying that an employer shall not withhold payment of paid prenatal leave when the required documentation is unattainable by the employee due to associated costs;
requiring the inclusion of information about the amount of paid prenatal leave used and the balance of available paid prenatal leave available for use on pay statements or by electronic means;
providing that upon mutual consent of employer and employee, the employee’s schedule may be changed instead of using paid prenatal leave, and specifying that employers shall not require an employee to work additional hours to make up for time used for paid prenatal leave or search for or find a replacement employee to cover hours during which the employee uses paid prenatal leave; and
specifying that the penalties that may be imposed by the DCWP for violation of the paid prenatal leave requirements include but are not limited to the full amount of any underpayment of wages owed and interest, liquidated damages of up to 100 percent of the total amount of wages found to be due and, for prohibited retaliation, liquidated damages of up to $20,000, reinstatement or front pay in lieu of reinstatement, lost wages, and injunctive relief.
Next Steps
A public hearing is scheduled for February 14, 2025, and interested parties may provide feedback during the comment period, which ends on the same day.
Employers with employees in New York City may want to review the proposed rules to determine what additional obligations they may face if the rules are adopted in substantially the same form as currently proposed.
Don’t Forget to Submit California Pay Data!
California’s pay data reporting requirements were established under Senate Bill (SB) 973, signed into law in 2020. The law mandates that private employers with 100 or more employees, including those hired through labor contractors, must annually report pay and demographic data to the California Civil Rights Department (CRD).
In 2022, Senate Bill (SB) 1162 expanded these requirements to include workers hired through labor contractors.
Under California’s law, employers must submit their pay data reports annually, with the deadline for the 2025 reporting year set for May 14, 2025. The report must include:
Employee demographic information: race, ethnicity, and sex.
Pay data: categorized by job category and pay band.
Hours worked: for each employee within the reporting year.
Compliance with these reporting requirements is not only a legal obligation but also a step toward promoting fair pay practices. By analyzing and reporting pay data, employers can identify and address potential pay disparities, ensuring equal pay for equal work.
The Civil Rights Department (CRD)’s pay data reporting portal is now open for submitting 2024 reporting. The CRD has published a handbook for employers that provides instructions for submitting and certifying annual reports, in addition to the Frequently Asked Questions page.
The CRD also cautions that Excel templates and CSV examples have been updated so employers should not use prior years’ versions as they will be rejected.