In a pivotal development last night, the Fourth Circuit Court of Appeals lifted a previous nationwide injunction, issued by Judge Adam B. Abelson of the District Court in Maryland. We talked about Judge Abelson’s temporary restraining order (TRO) here. What this means is, at least for the time being, that the TRO has been stayed – it no longer is in effect.
Cutting to the chase, this allows the enforcement of Executive Orders (EOs) 14,151 and 14,173, which aim to dismantle Diversity, Equity, and Inclusion (DEI) initiatives in federal operations, with federal contractors, and, arguably, with private companies and non-profits across the country.
Let’s dive in.
Background
As we discussed in our earlier blog post, HR Alert: Navigating DEI in a Shifting Legal Landscape, President Trump issued these EOs shortly after taking office in January 2025, directing federal agencies to terminate DEI programs and eliminate mandates for federal contractors to maintain affirmative-action programs. The EOs also require recipients of federal funds and contracts to certify that they don’t operate unlawful DEI programs. The EOs also direct the Department of Justice to investigate so-called “illegal DEI and DEIA” programs among private companies and non-profits and, potentially, pursue claims against those companies for violating the law.
In response, the Mayor and City Council of Baltimore, along with three national associations, challenged the constitutionality of specific provisions within the EOs, arguing they violated the First and Fifth Amendments. This led to Judge Abelson’s nationwide injunction on February 21, 2025, which Judge Abelson clarified on March 10th, temporarily halting the enforcement of the contested provisions.
Now the Fourth Circuit has reversed.
Fourth Circuit’s Order and Concurring Opinions
Last night March 14, 2025, the Fourth Circuit Court of Appeals granted the government’s motion to stay the nationwide injunction, effectively reinstating the enforcement of the EOs while the appeal of the TRO is pending. The court concluded that the government demonstrated a sufficient likelihood of success on the merits to warrant a stay until a final decision is reached.
Notably, all three judges on the panel—Chief Judge Albert Diaz, Judge Pamela Harris, and Judge Allison Jones Rushing—wrote separate concurring opinions, reflecting nuanced perspectives on the case.
• Chief Judge Diaz expressed concern over the lack of clear definitions in the EOs, stating:
“But neither [EO] ever defines DEI or its component terms.”
• Judge Harris highlighted the complexity of the issues at hand and the need for thorough judicial review, saying:
“But my vote to grant the stay comes with a caveat. What the Orders say on their face and how they are enforced are two different things. Agency enforcement actions that go beyond the Orders’ narrow scope may well raise serious First Amendment and Due Process concerns, for the reasons cogently explained by the district court.”
• Judge Rushing indicated a viewpoint more aligned with the Trump Administration’s stance, suggesting that the EOs likely are constitutional, saying:
“We must not lose sight of the boundaries of our constitutional role and the imperative of judicial impartiality.”
But What About Title VII and the New York Human Rights Law?
The reinstatement of these EOs reminds us about compliance with Title VII of the Civil Rights Act of 1964, which prohibits discrimination in the workplace based on race, color, religion, sex, and national origin. These are called protected classes.
Under Title VII (42 U.S.C. § 2000e-2), it’s unlawful for any U.S. employer to:
• Fail or refuse to hire, discharge, or otherwise discriminate against an individual because of a protected characteristic.
• Segregate or limit employees in ways that would deprive them of job opportunities based on race, sex, or another protected class.
New York law goes even further, prohibiting discrimination on the bases of additional protected classes such as race, color, creed, sincerely held practice of religion, disability, national origin, sexual orientation, gender identity or expression, military status, predisposing genetic characteristics, sex, age, marital status, status as a victim of domestic violence, and arrest record or conviction record. The New York Human Rights Law, as enforced by NY courts and the Division of Human Rights, isn’t going anywhere.
It remains the law in our State.
While the EOs don’t alter federal statutes like Title VII and they certainly don’t change State law, they’ve influenced how the Equal Employment Opportunity Commission (EEOC) views discrimination. As we discussed recently, this is especially true in workplaces with federal contracts. Employers should take care that any changes to their DEI programs don’t result in policies that could be deemed discriminatory or exclusionary for any employees, including Caucasian employees.
It remains the case that the EOs don’t alter how New York and the Division of Human Rights views discrimination.
Practice Pointers for Employers
We’re not panicking, and neither should you. But you’ve got to remain attentive to this shifting landscape.
There’s a lot to digest, which is we’re committed to providing straight talk on these developments.
- First, Executive Orders can’t change statutes. Title VII is a statute (that is, the law of the land) and it remains the law of the land. For employers in New York State, the Human Rights Law governs you, your policies, and actions as well. Heed the dictates of these laws, and you’ll be fine.
- Second, for those with federal contracts and grants, the time is ripe for you to anticipate potential modifications in requirements related to DEI initiatives. It’s crucial for you to monitor communications from federal agencies for updates on compliance obligations. You should be working with legal counsel to assess whether agency directives are lawful and to consider taking legal action if you and your wise attorneys conclude they’re not.
- Third, for companies and organizations that don’t have federal contracts or grants, it’s always appropriate to timely review your inclusivity programs, policies, handbook terms, and the actions and behaviors of managers and supervisors. Now is a great time to talk to your legal counsel and get a practical assessment of what you’re doing right. If their review reveals you need some changes, now is absolutely the time to do that. This mitigates your risk.
- Fourth, the other effective step to take is for risk managers to consult with their insurance agents and brokers. Check to see if your company or organization has Employment Practices Liability Insurance (EPLI), and if it does, review the scope of those policies. Having insurance that provides coverage – covering both the cost of legal defense and indemnity dollars – is a wise investment.
- Fifth, if your company is threatened because of your DEI practices, let us know. We’re ready to defend any unfair claim that your company is violating the law.
Looking Ahead
The reinstatement of these EOs marks a shift in the legal landscape surrounding DEI initiatives. As this case progresses, further legal clarifications undoubtedly will emerge, shaping the future of DEI programs in both the public and private sectors. Employers should remain vigilant, adapting to legal developments to uphold inclusive and compliant workplace practices.
Notably, there’s nothing wrong with – and there are effective business reasons to embrace – inclusive and compliant workplace practices.
For more insights on employment law and compliance, visit The Coppola Firm’s blog.
Or simply give us a call at 716.839.9700.
We’re your small business advocates, and we’re here to guide you through these unsettling times.
