Dive Brief:
- A three-judge panel of the 4th U.S. Circuit Court of Appeals stayed a federal judge’s preliminary injunction of components from two White House executive orders targeting diversity, equity, inclusion and accessibility programs, per a Friday decision.
- The 4th Circuit’s decision effectively allows President Donald Trump to pursue enforcement of the orders, one of which called on federal agencies and contractors to end all DEI programs and initiatives and another which directed the U.S. Department of Justice to investigate private-sector DEI programs and encourage the private sector to end “illegal DEI discrimination and preferences” associated with those programs.
- In a concurring opinion, Chief Judge Albert Diaz wrote that “people of good faith who work to promote [DEI] deserve praise, not opprobrium.” The panel agreed, however, that the government was likely to succeed in showing that the challenged provisions did not violate the First or Fifth Amendments.
Dive Insight:
While the decision in National Association of Diversity Officers in Higher Education v. Trump favors the Trump administration’s enforcement for the time being, the concurring opinions issued by Diaz and Judge Pamela Harris come with some caveats for regulators.
Harris in particular noted that “what the Orders say on their face and how they are enforced are two different things,” adding that enforcement actions that go beyond the initial scope of the orders could raise constitutional issues.
Additionally, both Harris and Diaz defended DEI work, with Diaz stating that the First Amendment should leave room for discussion and debate about DEI programs and the methods by which organizations can empower historically disadvantaged groups.
“From boardrooms to courtrooms to operating rooms to classrooms, previously marginalized Americans are thriving in spaces long closed to them,” Diaz said. “And we are the better for it.”
Employers now await the Trump administration’s next steps toward potential legal enforcement against private-sector DEI programs, a possibility identified by Attorney General Pam Bondi in a Feb. 5 memo. Trump’s executive order tasked the Justice Department with submitting a report on ways for private-sector employers to end DEI programs by March 1, 2025.
Several employment law experts — including Chai Feldblum, a former Democratic commissioner for the U.S. Equal Employment Opportunity Commission — have said that employers may consider revisiting and reframing aspects of their DEI programs to ensure compliance with Trump’s orders.
Littler Mendelson survey results published last month found that nearly half of C-suite executives said they were not considering additional DEI rollbacks despite the Trump’s administration’s enforcement efforts, while only 8% said they were seriously considering such changes. Most of the respondents, 60%, said that their organizations were awaiting further developments from the administration before making any changes.
