Since taking office, President Trump has issued a series of Executive Orders (EOs), some of which attacked companies that believe in diversity, equity, and inclusion as means of complying with Title VII as well as various State laws prohibiting discrimination, including New York’s Human Rights Law.
This effort caused consternation among many, including companies and organizations that have worked hard to ensure their employees and team members felt a sense of belonging and were treated equitably.
We’ve fielded lots of questions and concerns. Today, we’re breaking it down.
Following the EOs, new United States Attorney General (AG) Pam Bondi issued a so-called Memorandum Ending Illegal DEI and DEIA Discrimination and Preferences directing the Department of Justice (DOJ) to take certain steps. Among them, the DOJ was to begin investigations into so-called “illegal DEI.”
In the Memorandum, Bondi told the DOJ’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.”
This provision in the January 21, 2025 EO 14173 and in the AG’s Memorandum is also known as the Enforcement Threat.
Late Friday, February 21, 2025, a Maryland federal court issued a temporary restraining order (TRO) stopping, in part, the Trump Administration’s attack on diversity, equity, and inclusion – at least for now.
Among other things, in his 63-page opinion, District Court Judge Adam B. Abelson said:
The term “DEI,” of course, is shorthand for “diversity, equity, and inclusion.” And ensuring equity, diversity, and inclusion has long been a goal, and at least in some contexts arguably a requirement, of federal anti-discrimination law. But the administration has declared “DEI” to be henceforth “illegal,” has announced it will be terminating all “‘equity-related’ grants or contracts”—whatever the administration might decide that means—and has made “practitioners” of what the government considers “DEI” the targets of a “strategic enforcement plan.” . . .
But the [Trump EOs] do not define any of the operative terms, such as “DEI,” “equity-related,” “promoting DEI,” “illegal DEI,” “illegal DEI and DEIA policies,” or “illegal discrimination or preferences,” . . . let alone identify the types of programs or policies the administration considers “illegal.” . . . .
Here, Plaintiffs allege four types of irreparable harm from the challenged Executive Order provisions: threat of loss of funds, uncertainty regarding future operations, loss of reputation, and chilled speech. The Court agrees that Plaintiffs have adequately shown a sufficient likelihood of irreparable harm.
What’s DEI?
Let’s take a step back and set the stage.
DEI in the workplace refers to the policies, practices, and procedures a company uses to promote a work environment where everyone feels represented, respected, valued and has equal access to the same opportunities and resources as others in the workplace.
Specifically, DEI stands for diversity, equity, and inclusion.
Diversity in the workplace means the representation of different races, genders, sexual orientation, age and socioeconomic status, and other statuses in the workplace. Diversity is important to business practices because collaboration of people from different backgrounds ultimately leads to more innovative ideas and solutions.
Equity in the workplace starts with the recognition of barriers that can prevent groups of people from equal access, opportunity, and advancement in a company or organization. Equality at work means providing everyone with the same resources. In contrast, equity at work means providing resources needed on an individual basis so that everyone can attain the same outcome.
Inclusion in the workplace is demonstrated through intentional efforts to create an environment where employees feel welcomed and valued. Specifically, inclusion emphasizes the importance of employees feeling a sense of belonging.
What’s DEIA?
DEIA initiatives emphasize the importance of Accessibilities. It stresses that in order to achieve diversity, equity, and inclusion, individuals with disabilities often need accommodations in order to have equal access and opportunities. Employers should be familiar with reasonable accommodations under the Americans with Disabilities Act and New York State law. They sometimes need to develop plans and resources for supporting employees.
The Temporary Restraining Order and United States Businesses
For purposes of private industry, including New York-based businesses, the TRO focused on the Enforcement Threat, and it divided the Enforcement Threat into two sections:
- the direction that the DOJ conduct an investigation; and
- the threat to take federal civil enforcement actions against private companies.
The judge is allowing the DOJ to investigate but it has enjoined – or stopped – any threat against private companies, saying that there’s a likelihood of success on the merits:
The White House and Attorney General have made clear, through their ongoing implementation of various aspects of the [EO 17143], that viewpoints and speech considered to be in favor of or supportive of DEI or DEIA are viewpoints the government wishes to punish and, apparently, attempt to extinguish. And, as the Supreme Court has made clear time and time again, the government cannot rely on the “threat of invoking legal sanctions and other means of coercion” to suppress disfavored speech.
For private companies that are federal government contractors, there are other important TRO provisions which are not explored here.
DEI As An Important Business Driver – Fast Facts
Nationally and in New York, following principles of diversity, equity and inclusion is good for business. For example:
- Seventy-six percent of employees and individuals seeking employment report that a diverse workforce is an important factor when evaluating companies and job offers.
- Thirty-two percent of employees and job seekers wouldn’t apply for a job at a company where there’s a lack of diversity among its workforce.
- The top-ranked companies for diversity are 39% more likely to outperform companies that perform in the bottom quartile for diversity representation.
Limitations on the Federal EO and Attorney General Memorandum
As Judge Abelson recognized, neither EO 14173 nor the Attorney General’s Memorandum define what “illegal DEI” actually is. What they might have meant is “discriminatory DEI,” which could include programs that discriminate based on race, sex, ethnicity, color, age, etc., such as quota programs.
But smart business owners and HR professionals know that discrimination long has been unlawful since The Civil Rights Act of 1964, also known as Title VII – and here in New York under the New York Human Rights Law. Never has it been unlawful – let alone illegal, which connotes the commission of a crime – to create and promote a work environment that incorporates the principles of diversity, equity, and inclusion.
The President’s EO doesn’t change the law in this regard.
Currently, as long as you’re not violating any pre-existing federal or New York State employment discrimination laws, then DEI initiatives in the workplace simply can’t be outlawed by an EO or a memorandum from the Attorney General.
Those writings can intimidate, confuse, and confound, however.
And so we believe it’s important to keep our friends up to date on the reality of existing law.
Best Practice Reminders
As always, responsible business owners and HR managers will remain abreast of the law, regulations, and best practices. Among the latter are:
- Regularly (at least annually) review and update DEI policies and programs to mitigate risk of litigation.
- Train HR professionals and hiring managers on Title VII and the New York Human Rights Law.
- Engage in hiring practices that do not discriminate.
- Create and/or maintain hiring evaluations that document decision-making process.
- At the risk of sounding self-serving, when you’re in doubt, call your employment attorney, and she’ll help ensure compliance.
What’s Next?
We’re watching the federal developments closely, hence the publication of this news on a Saturday morning to ensure you’ve got the latest developments at your fingertips.
First, there’s no change to New York law. The Human Rights Law makes discrimination on the basis of race, national origin, sex, and all other protected characteristics unlawful.
As noted above, the TRO prevents certain things and doesn’t prevent others.
But notably, DEI programs, policies, and principles that comply with Title VII and New York’s Human Rights Law are lawful and may continue.
If you have questions or concerns about your company’s practices, feel free to contact us at 716.839.9700 or info@coppolalegal.com.
We’re here to help.
