By: Alexandra (Sasha) Chepov
As indicated in our February 2025 E-Alert, President Trump issued an Executive Order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which revoked Executive Order 11246’s affirmative action requirements (hereinafter referred to as the “Executive Order”). Almost immediately after signing the Executive Order, the National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunities Center, and the Mayor and City Council of Baltimore Maryland filed suit in the U.S. District Court for the District of Maryland seeking an order declaring the Executive Order unlawful.
On February 21, 2025, the court issued a nationwide preliminary injunction as to the Termination, Certification, and Enforcement Threat provisions of the Executive Order. Specifically, the injunction barred enforcement of the provisions that (1) directed all executive agencies to terminate equity-related grants or contracts, (2) directed all executive agencies to include in every contract or grant award a certification that the contractor and grantee will not operate any programs promoting DEI that violate any applicable federal anti-discrimination laws, and (3) directed the U.S. Attorney General to take appropriate measures to encourage private sector employers to end illegal discrimination and preferences. However, the preliminary injunction does not prohibit the U.S. Attorney General from tracking and reporting on employer DEI programs, nor does it prohibit lawsuits or investigations based on DEI incentives or allegations of illegal DEI programming.
As it is likely that an appeal of the decision will be filed with the Fourth Circuit Court of Appeals, employers should continue monitoring the aftermath of this decision in the coming weeks. Further, employers should review and consult with counsel to ensure that their DEI incentives, practices, and procedures are compliant with all applicable laws, regulations, and Executive Orders.
If you have any questions about the Final Rule, or any questions about DEI incentives, practices, or procedures, please contact Alexandra (Sasha) Chepov at achepov@lindner-marsack.com, Samantha Wood at swood@lindner-marsack.com, or another member of the employment team at Lindner & Marsack, S.C.