U.S. Attorney General and Office of Personnel Management Continue Trump Administration’s Attacks on DEI and DEIA

Background

On January 21, 2025, President Donald Trump signed Executive Order 14173: “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which Dechert discussed in a previous OnPoint.¹  E.O. 14173 revoked E.O. 11246, which had required federal contractors to prepare and implement affirmative action programs and authorized the Office of Federal Contract Compliance Programs (“OFCCP”) to enforce such programs.²  E.O. 14173 also revealed the administration’s intent to encourage the private sector to end the use of diversity, equity, and inclusion (“DEI”) and diversity, equity, inclusion, and accessibility (“DEIA”) policies. Specifically, the Executive Order asserted that institutions in the medical industry, law enforcement, and higher education use DEI and DEIA in ways that can “violate the text and spirit” of federal civil rights law and “undermine our national unity, as they deny, discredit, and undermine” individual achievement and merit.³  E.O. 14173 directed the heads of all federal government agencies, with support from the Attorney General, to “take all appropriate action” to “advance…the policy of individual initiative, excellence, and hard work” in the private sector, and required the Attorney General, within 120 days of the issuance of the executive order, to submit a report with recommendations for enforcing federal civil rights law and taking measures to encourage the private sector to end “illegal discrimination and preferences, including DEI.”⁴

On the same day that she was sworn in on February 5, 2025, Attorney General Pam Bondi issued two memoranda to all Department of Justice (“DOJ”) employees providing guidance on ending illegal DEI and DEIA and discriminatory practices based on E.O. 14173 and the U.S. Supreme Court’s 2023 ruling in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College.⁵⁶

That same day, the Office of Personnel Management (“OPM”) also issued a memorandum to the heads and acting heads of departments and agencies, providing guidance on ending DEIA offices, programs, and initiatives pursuant to E.O. 14173, E.O. 14151 (“Ending Radical and Wasteful Government DEI Programs and Preference”), and E.O. 14148 (“Initial Recissions of Harmful Executive Orders and Actions”).⁷

AG Memorandum: “Ending Illegal DEI and DEIA Discrimination and Preferences”

Of particular significance for private employers, the AG memorandum regarding “Ending Illegal DEI and DEIA Discrimination and Preferences,” states that by March 1, 2025, the Civil Rights Division and the Office of Legal Policy of the DOJ must submit a joint report to the Associate Attorney General containing recommendations regarding enforcing federal civil rights law and “taking appropriate measures to encourage the private sector to end illegal discrimination and preferences,” including DEI and DEIA policies.⁸ The memorandum directs that the report identify:

• “Key sectors of concern” within the jurisdiction of the DOJ;
• The “most egregious and discriminatory DEI and DEIA practitioners” in each sector identified;
• Steps to deter DEI and DEIA programs that would constitute illegal discrimination;
• Other potential litigation activities, regulatory actions, and sub-regulatory guidance; and
• Other strategies to end illegal DEI and DEIA practices.⁹

One of the most noteworthy components of the memorandum is that in addition to evaluating general civil enforcement efforts, AG Bondi specifically directs that the report address “proposals for criminal investigations and for up to nine potential civil compliance investigations of entities that meet the criteria outlined in E.O. 14173,” namely publicly traded corporations, large non-profits, foundations with $500 million or more in assets, state and local bar and medical associations, and colleges and universities with endowments over $1 billion. The memorandum also reiterates that under Students for Fair Admissions, Inc. v. President & Fellows of Harvard College,¹⁰  colleges, universities, and educational agencies that receive federal funding may not treat students differently based on race, and advised that the DOJ will work with the Department of Education to issue directions regarding compliance with this principle.¹¹

AG Memorandum: "Eliminating Internal Discriminatory Practices"

Although AG Bondi’s second memorandum, titled “Eliminating Internal Discriminatory Practices,” focuses primarily on use of DEI and DEIA within federal agencies, it still offers some potential insights into how the administration’s actions may extend to the private sector.

In accordance with E.O. 14173, the memorandum directs the DOJ to evaluate a range of internal and external materials, including settlement agreements, litigation positions, funding mechanisms, and internal guidance, to ensure there are no "race- or sex-based preferences, diversity hiring targets, or preferential treatment based on DEI- or DEIA-related criteria."¹²  According to the memorandum, all materials that allude to these practices must be replaced with new guidance "affirming that equal treatment under the law means avoiding identity-based considerations."¹³  Under this new guidance, theories relating to disparate-impact discrimination and the use of statistical information as evidence of discrimination, which have long been used by DOJ and OFCCP in pursuing claims of systemic discrimination, should also be minimized.

OPM Memorandum: "Further Guidance Regarding DEIA Offices, Programs, and Initiatives"

In this memorandum, the OPM provided guidance on federal agencies’ use of equal employment opportunity offices, accessibility and reasonable accommodations, employee resource groups, special emphasis programs, and other authorities related to the issue of “illegal DEIA initiatives.”¹⁴  In this memorandum the OPM asserts that agencies should eliminate all DEIA offices, policies, programs, and practices that unlawfully discriminate in "any employment action or other term, condition, or privilege of employment…"¹⁵  Among the practices that the memorandum suggests are unlawful are the requirement that diverse participants be included on hiring panels and in candidate pools. Such requirements are often utilized by private employers in their hiring processes and may now need to be re-examined.

Under the orders’ requirements to eliminate discriminatory practices, the Biden administration’s efforts to expand the use of accommodations in connection with DEI initiatives are also curtailed. Agencies are thus directed to "rescind policies and practices [concerning accommodations] that are contrary to the Civil Rights Act of 1964 and the Rehabilitation Act of 1973."¹⁶  The memorandum does caution, however, that “agencies should not terminate or prohibit accessibility or disability-related accommodations, assistance, or other programs that are required by those or related laws.”

Finally, the OPM memorandum addresses agencies’ use of “employee resource groups” and states that these groups cannot promote DEIA initiatives or advance recruitment, hiring, or preferential benefits (including training and career development) based on protected characteristics. Of potential note for private employers, however, the memorandum allows agencies to continue to provide “affinity group lunches, mentorship programs, and social and cultural events,” but notes that “agencies must ensure that attendance at such events is not restricted (explicitly or functionally) by any protected characteristics, and that attendees are not segregated by any protected characteristics during the events.”¹⁷  The memorandum states that programs that are restricted in such a manner are “unlawful.”

Practical Advice

Although all aspects of these memoranda do not implicate private employers directly, they and the other pronouncements by the Trump administration provide the first insights into the aggressive approach that the administration intends to adopt to seek to eliminate what it views as “unlawful” DEI and DEIA initiatives in both the federal government and the private sector. Accordingly, employers should carefully evaluate their existing programs in light of the administration’s new priorities as well as the general prohibitions on discrimination in hiring and employment practices under federal, state and local laws, all of which remain in place. Employers may consider reviewing, among other things, the following:

• Employee application and hiring practices;
• Affinity group programs and events;
• Employment handbooks and standalone policies; and
• Contracts with the federal government.

This review will ensure that employers are minimizing risk as the Trump administration, and courts, provide further clarity, especially regarding the extent to which these pronouncements seek to extend to private actors, including those with no contracts with the federal government. Employers should also eliminate any policies or practices that include any numerical quotas based on race, gender, or similar characteristic in hiring and employment as those raise the greatest threat of both private litigation and government scrutiny

In light of the number of executive orders and memoranda, as well as statements in the press, it is clear that the Trump administration will continue its efforts to eliminate DEI and DEIA policies in the federal government and may seek to extend these efforts to the private sector, as well. As a result, there will likely be more memoranda and orders as the administration places its Senate-confirmed nominees in agencies. Dechert has been monitoring these developments and will do so going forward. To keep clients up to date and assist in examining these developments, Dechert has formed a task force of internal experts to advise on the legal and practical considerations raised by this changing landscape.