What Is "Illegal DEI?" Key Takeaways for Employers in Light of Litigation and Guidance Issued by the Federal and State Governments - The National Law Review
This alert will explore what the federal government may consider to be “illegal DEI” in light of legal challenges to President Trump’s multiple executive orders (EO’s) pertaining to diversity, equity, inclusion, and accessibility (DEI)1 and provide employers with some best practices with respect to DEI initiatives.
Legal Challenges to the DEI EOs
The enforceability and constitutionality of the DEI EO’s have been challenged in numerous federal lawsuits, including Nat’l Assoc. of Diversity Officers in Higher Ed., et al. v. Donald J. Trump, et al.2 On 21 February 2025, the United States District Court for the District of Maryland (the Court) issued a nationwide preliminary injunction (Order) enjoining the following directives in the DEI EO’s (1) canceling or freezing any awards, contracts, or obligations for government contractors engaging in illegal DEI; (2) requiring contractors to make certifications with respect to illegal DEI; and (3) bringing False Claims Act enforcement actions against federal contractors based on such certifications. The Court found that the DEI EOs failed to define “operative terms” such as “DEI,” “illegal DEI,” “illegal DEI policies,” or “illegal discrimination or preferences.”3 The Court also noted that the government was unable to clarify what type of actions constituted “illegal DEI” when asked direct questions and presented with hypotheticals during the hearing.4
Notably, the Order did not enjoin the US Attorney General from preparing a report...
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